Recognition and Enforcement of Foreign Judgments in ... - McMillan

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-34- evidence adduced or steps taken in the foreign proceedings amounts to fraud just discovered. 93 In Beals, the Supreme Court noted that the Canadian defendants made a conscious decision not to defend the Florida action against them, as a result of which they were barred from attacking the evidence presented to the Florida court as fraudulent. 94 In this regard, it should be noted that after the default judgment was issued, the Canadian defendants received notice of it and had a further opportunity to set the judgment aside or to appeal it. The Canadian defendants received legal advice to the effect that the judgment was not enforceable in Canada and that they should therefore not move to set it aside or appeal it. As a practical matter, some of the apparent harshness of the judgment towards the defendants was alleviated by the possibility of recovery against the insurance of lawyer who provided the faulty legal advice. C) Natural Justice The natural justice defence requires the parties seeking to impugn the foreign judgment to prove to a civil standard of proof that the foreign proceedings were contrary to Canadian notions of fundamental justice. 95 In assessing the defence, the Canadian court has a heightened duty to protect the interests of defendants where the judgment to be enforced is a foreign one. 96 In determining whether natural justice was met, the enforcing court must be satisfied that the defendant was granted a fair process which reasonably guarantees basic procedural safeguards, such as judicial independence and fair ethical rules governing participants in the judicial system. 97 Natural justice is restricted to the form of the foreign procedure and to 93 Beals v. Saldanha, [2003] 3 S.C.R. 416 at para. 53 94 Beals v. Saldanha, [2003] 3 S.C.R. 416 at para. 54 95 Beals v. Saldanha, [2003] 3 S.C.R. 416 at para. 59 96 Beals v. Saldanha, [2003] 3 S.C.R. 416 at para. 60 97 Beals v. Saldanha, [2003] 3 S.C.R. 416 at para. 62
-35- due process. It does not relate to the merits of the case. 98 Natural justice includes but is not limited to the necessity that a defendant be given adequate notice of the claim and that he be granted an opportunity to defend. 99 Notice is determined by the law of the foreign forum in which the claim was adjudicated. 100 In Beals, for example, the defendants argued that they had been denied natural justice on the basis that the claim against them merely disclosed a claim for “damages which exceed $5,000.” The defendants argued that this did not give them adequate notice that a judgment in the amount of $800,000 could be awarded against them and did not allow them the chance to assess the extent of their financial jeopardy. A majority of the Supreme Court rejected this argument, maintaining the narrowness of the defence of natural justice. The Court found that a defendant to a foreign action commenced in a jurisdiction with a real and substantial connection to the action can reasonably be expected to inform him or herself about the foreign law at issue. Proceedings are not regarded as having been contrary to natural justice merely because the foreign court admitted evidence that would be inadmissible under Canadian law, or excluded evidence that would be admissible under Canadian law. 101 For an allegation of a denial of natural justice to succeed, the evidence must establish a fundamental flaw in the foreign proceedings such as inadequate notice, 102 denial of the right to be heard, 103 or bias on the part of the presiding tribunal. 104 98 Beals v. Saldanha, [2003] 3 S.C.R. 416 at para. 64 99 Beals v. Saldanha, [2003] 3 S.C.R. 416 at para. 65 100 Minister of State of the Principality of Monaco v. Project Planning Associates (International) Ltd. (1980), 32 O.R. (2d) 438n (Ont. C.A.) 101 Society of Lloyd’s v. Meinzer (2001), 55 O.R. (3d) 688 (Ont. C.A.) at para. 21 102 Arcadia International LLC v. Janmeja, [2008] N.S.J. No. 147 (N.S.S.C.); Cortes v. Yorkton Securities Inc., [2007] B.C.W.L.D. 2086 (B.C. S.C.)
Page 1 and 2: THE RECOGNITION AND ENFORCEMENT OF
Page 3 and 4: The Recognition and Enforcement of
Page 5 and 6: -3- the judgment is actually moneti
Page 7 and 8: British Columbia court would not ha
Page 9 and 10: -7- Thus, for example, in Braintech
Page 11 and 12: -9- the application of North Caroli
Page 13 and 14: -11- 10. Section 10 merely provides
Page 15 and 16: -13- fairness, not a mechanical cou
Page 17 and 18: -15- (b) Willingness to Enforce For
Page 19 and 20: -17- or promotional activities in O
Page 21 and 22: -19- Judgments on the merits includ
Page 23 and 24: -21- unlikely to enforce a foreign
Page 25 and 26: -23- with constitutional protection
Page 27 and 28: -25- PART II - BARS TO ENFORCEMENT
Page 29 and 30: -27- party with a claim for fees fo
Page 31 and 32: -29- Although an older minority jud
Page 33 and 34: -31- to the plaintiff and the court
Page 35: -33- fraud, since to allow such cla
Page 39 and 40: -37- had argued that the public pol
Page 41: -39- court might. Second, the court

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