CANADA Trends and Developments Contributed by: Carey Veinotte, Bojm Funt & Gibbons
mary basis. In British Columbia, Rule 9-7 allows trials based on affidavits rather than the time and expense of full trials with live witnesses. Most enforcement cases are determined by way of summary trial pro - cedures. A Canadian court will generally enforce a foreign money judgment where the foreign issuing tribunal is a judicial body, with reference to the following ques - tions. • Did the debtor attorn to the receiving province’s jurisdiction or is there a “real and substantial” con - nection? • Was the foreign judgment a final order? Is the mat - ter concluded with finality in the foreign jurisdic - tion? • Is there any evidence of fraud or other misconduct by the creditor in obtaining the order in the foreign jurisdiction that would cause a Canadian court to refuse registration? However, it should be noted that a debtor who realises that a determined creditor has followed it to Canada will sometimes turn and fight, by attacking the factors set forth above in an attempt to convince a Canadian court that there should be a full trial in Canada on the merits. For example, a debtor may argue that material facts that underpin the foreign judgment remain very much in dispute. In Lonking (China) Machinery Sales v Zhao , 2019 BCSC, the British Columbia court refused to summarily register a judgment obtained by the plain - tiff in China. Defendant Zhao raised defences of fraud and breach of natural justice in the British Columbia summary trial. The court ruled that it was unable to make the necessary inferences to determine those defences on the basis of affidavits alone. The court ruled that the defences were worthy of a full trial and noted that the amount at stake – CAD5 million – was sufficiently weighty that the matter should go to the trial list. In Liu v Luo , 2018 BCSC 1237, the British Columbia court was concerned whether the Chinese court had followed its own rules of procedure in terms of service upon the defendant (Luo). The amount of money at
stake was significant: CAD2 million. The court held that it would be inappropriate to resolve the factual and procedural concerns raised by defendant Luo on the basis of a summary trial and remitted the matter to the trial list. Arbitral Awards Treaties There are a number of relevant treaties. The recogni - tion and enforcement of foreign arbitral awards are governed by the applicable international arbitration acts adopted by the provinces. Canada has also passed the United Nations Foreign Awards Convention Act, RSC, c 16 (2nd Supp), imple - menting the New York Convention, but reserved rec - ognition to commercial arbitral awards. Canada also passed the Commercial Arbitration Act RSC 1985, c 17 (2nd Supp), which adopts the UNCI - TRAL Model Law on International Commercial Arbitra - tion (1985) (the “Model Law”). The provinces have also adopted the Model Law. Canada is also a party to and has implemented the 1965 Convention on the Settlement of Investment Dis - putes between States and Nationals of Other States, 18 March 1965. Provincial registration of foreign arbitral awards A British Columbia case from 2014 is instructive. In Assam Company India Ltd v Canoro Resources Ltd , 2014 BCSC 370, an Indian company (Assam), in India, invoked an arbitration clause in an agreement made in that country against Canoro, a British Columbia-reg - istered company, for breach of contract. For a while, Canoro answered the arbitration notice of dispute and made various submissions about the appropriateness of the individuals on the three-member panel of arbi - trators and other arguments. Then, Canoro left the field, refusing to participate fur - ther in the litigation. The Indian arbitration proceeded in its stead. Without Canoro present, the arbitral panel nonetheless put Assam to the proof of its case, which Assam achieved. A judgment in the amount of CAD32 million and the transfer of 52.9% of Canoro’s shares to Assam was rendered in Assam’s favour.
69 CHAMBERS.COM
Powered by FlippingBook