|
Immunity - State Immunity Act (SIA). Petersen Energía Inversora, S.A.U. v. Argentina [service validation of a state party]
In Petersen Energía Inversora, S.A.U. v. Argentina (Ont CA, 2025) the Ontario Court of Appeal granted a motion to quash an appeal, here where the appeal was against "the Republic of Argentina, of an order validating service of an application record upon the responding party".
The court considers whether the order appealed was interlocutory or final, here for appeal route purposes and in a state party context:[8] The responding party relies upon this court’s decisions in Paulpillai Estate v. Yusuf, 2020 ONCA 655, leave to appeal to S.C.C. refused, 39881 (February 24, 2022) and Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322, arguing that an order that finally disposes of any substantive right or defence of a party in an action is final, even if the order does not finally dispose of the dispute between the parties. It argues that the Impugned Order meets that description, since it determined its rights under both the SIA and the Convention, specifically regarding state sovereignty and sovereign immunity. It further relies upon this court’s decision in Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189, 115 O.R. (3d) 1 (“Khan”), as confirming that orders regarding service under the Convention implicate substantive legal rights and are appealable directly to this court.
[9] We do not agree. The only issue resolved by the motion judge was the validity of the service of the application record on the responding party. As this court has affirmed, orders confirming the validity of service are generally interlocutory for the purposes of determining the appropriate route of appeal: Xela Enterprises Ltd. v. Castillo, 2014 ONCA 275, at para. 3; Shanghai Lianyin Investment Co. Ltd. v. Lu, 2023 ONCA 285, at para. 1.
[10] The fact that the Impugned Order determined that service upon a state party to the Convention can be validly effected in accordance with ss. 9(1)(c) and (2) of the SIA does not make the Impugned Order final. As this court explained in Paulpillai, at para. 16, an order that determines the question raised by a motion will be considered interlocutory if the real matters in dispute and the substantive rights of the parties remain undecided.
[11] That is the case here. As in Shanghai Lianyin Investment Co. Ltd, the only “real matter in dispute” before the motion judge was the validity of the service on the responding party. We see no reason why the general rule that such procedural orders are interlocutory should not apply in the context of service effected under the SIA. Nor is this conclusion inconsistent with Khan, since the issue of this court’s jurisdiction to hear the appeal was not raised or decided in Khan such that it cannot establish this court’s jurisdiction: CIBC Mortgages Inc. v. Computershare Trust Co. of Canada, 2015 ONCA 846, at para. 12; Singh v. Heft, 2022 ONCA 135, at para. 15.
[12] While the practical effect of the Impugned Order is to allow the recognition and enforcement application to proceed in Ontario, it does not deprive the responding party of any jurisdictional or other defences, including those relating to sovereign immunity, to which it may otherwise be entitled to make in the underlying proceeding.
|
