Enforcement of Ontario Judgment in US (U.S.A and American States)

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorArbitration, Casino Debt Recovery, Civil Litigation, Commercial Arbitration, Commercial Litigation, Creditors Rights, Cross-Border Litigation, Debt and Enforcing Judgments, Enforcement of Foreign Arbitral Awards, Enforcement of Foreign Judgments, Forum Challenges, Jurisdictional Challenges, Loan and Guarantee, Of Interest to US Counsel0 Comments

If you are looking for Enforcement of US Judgment in Ontario, Canada, then click here. ____ Enforcement of Ontario Judgment in US (U.S.A and American States)  We sometimes act for clients in litigation against defendants located in an American state, or having assets located in one or more U.S. states. Other times we are retained simply to assess and / or seek enforcement of an Ontario or other Canadian judgment in an U.S. state. Accordingly, the consideration sometimes arises whether a money judgment obtained in a court of Ontario or Canada is readily enforceable in a particular US state. Neither Ontario nor Canada is a party to any bilateral enforcement of money judgement treaty or convention with the U.S. or any particular state in the U.S..  However many U.S. states have enacted statutes concerning the enforcement of foreign (including Ontario and Canada) money-judgments in that state. Since this is largely … Read More

In Jurisdiction Dispute, Court of Appeal Confirms Contract Made Where Acceptance Received

Andrew Ottaway, B.A. (Hons.), LL.B.Appellate Advocacy, Civil Litigation, Commercial, Commercial Litigation, Contract Disputes, Cross-Border Litigation, Jurisdictional Challenges, Of Interest to US Counsel0 Comments

In Eco-Tec Inc. v. Lu, the Plaintiff Ontario company researched, developed and manufactured proprietary technology and products.  The Defendants were Lu, a Canadian citizen, his BVI company and three Chinese companies owned by him or his parents.  The Defendant companies were the Plaintiff’s consultant, agent or distributor in China.  In the course of their relationship, the Plaintiffs and Defendants signed a number of agreements. The Plaintiff ended its relationship with the Defendants in 2012, alleging that the Defendant’s Chinese companies were selling clones of the Plaintiff’s product in China.  The Plaintiff brought a claim for breach of confidence, breach of contract, breach of fiduciary duty, conspiracy, unjust enrichment and/or unlawful interference with its economic interests.  The Defendants brought a motion to dismiss the Ontario action on the basis that the Ontario Court did not have jurisdiction.  The motion judge dismissed the motion, finding, among other reasons, that the dispute was connected … Read More

Ontario Court Rejects Forum of Necessity Argument

Andrew Ottaway, B.A. (Hons.), LL.B.Cross-Border Litigation, Negligence, Of Interest to US Counsel, Slip & Fall, Travel & Tour Operators0 Comments

In Cook v 1293037 Alberta Ltd., the Ontario Plaintiff was allegedly injured in an incident at the Defendant’s Alberta hotel.  The Plaintiff commenced an action in Ontario respecting the incident nearly two years after the incident occurred.  The Defendant brought a motion to dismiss the Ontario action on the grounds that Ontario did not have jurisdiction over the claim.  By the time the Defendant brought the motion, more than two years had passed since the incident. The Ontario Court applied the test for jurisdiction simpliciter set out by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda – i.e. whether the claim had a “real and substantial connection” to Ontario.  The Plaintiff argued that the Defendant corporation was “domiciled or resident in Ontario” because one of the corporation’s directors had moved to Toronto, Ontario following the incident.  The Court rejected this argument, stating that there was no evidence that the … Read More

David Alderson, Panelist on Law Society of Upper Canada Annotated Partnership Agreement 2015 CDP

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorBusiness Litigation, Closely-Held Business Disputes, Contract Termination, Cross-Border Litigation, International Joint Venture, Joint Venture Disputes, Partnership Dispute, Partnerships and Shareholder Disputes, Wrongful Dismissal0 Comments

David Alderson, of Gilbertson Davis LLP, will be a panelist at the Law Society of Upper Canada Continuing Professional Development program, The Annotated Partnership Agreement 2015, on September 29, 2015 (alternate date, November 20, 2015) on the panel entitled “Review of the Differences (Legal and Drafting) Between a Partnership and a Joint Venture – Understanding the Significant Consequences”. Moderator of the panel (and Chair of the program) is Alison Manzer, Cassels Brock & Blackwell LLP and co-panelist is Sunita Doobay, TaxChambers LLP. David Alderson, LL.B (Osgoode), LL.M (Lond.) is a commercial litigator with Toronto insurance and commercial litigation firm Gilbertson Davis LLP. He holds a Master of Laws degree in commercial and corporate law and has been admitted to practice in England & Wales, Bermuda and New York State, as well as Ontario. David has practised local law in England, Bermuda, Dubai and Ontario, in diverse business and commercial litigation practice … Read More

Supreme Court Clarifies Jurisdiction Requirements for Enforcement of Foreign Judgments

Gilbertson Davis LLPAppeals, Commercial Law, Cross-Border Litigation, Enforcement of Foreign Judgments, Jurisdictional Challenges, Of Interest to US Counsel0 Comments

In Chevron Corp. v. Yaiguaje, the Supreme Court of Canada clarified the jurisdictional requirements for an Ontario court to consider a proceeding to enforce a foreign judgment. In this case, the plaintiffs obtained judgment against Chevron Corp. in Ecuador for some $9.5 billion USD, and they sought to enforce that judgment in Canada, against both Chevron Corp. and the Canadian subsidiary, Chevron Canada. In a unanimous decision, the Supreme Court confirmed that the plaintiff does not have to show a real and substantial connection between Ontario and the foreign judgment debtor. The court need only be satisfied that there is a real and substantial connection between the foreign court and the defendant when the foreign court issued its judgment. Ontario courts will have jurisdiction over a foreign defendant in an enforcement proceeding as long as the defendant was properly served. It is not even a requirement that the defendant have assets in Ontario prior … Read More

Court Declines Jurisdiction over New York MVA Despite Passed Limitation Period

Gilbertson Davis LLPCivil Litigation, Cross-Border Litigation, Insurance, Jurisdictional Challenges, Of Interest to US Counsel0 Comments

In Mannarino v The Estate of Jane Brown, the Superior Court declined to take jurisdiction over a claim involving a motor vehicle accident that took place in New York, even though the limitation period for bringing a claim in New York had since passed. The plaintiff was a passenger in a vehicle in the state of New York, and was involved in a car accident with another New York driver. The plaintiff sued in Ontario, claiming in part that the injuries suffered exacerbated an earlier motor vehicle injury which was already properly before the courts in Ontario. The plaintiff argued that the nature of the injuries would require the two actions to be consolidated. The court noted that no consolidation motion had yet been brought. Justice Skarica considered the factors outlined in Club Resorts Ltd. v. Van Breda for the court to take jurisdiction over a claim. The court found that none of … Read More

Court Finds US Company Did Not Consent/Attorn to Ontario’s Jurisdiction By Bringing Recognition Action

Andrew Ottaway, B.A. (Hons.), LL.B.Cross-Border Litigation0 Comments

In Carolina Foods, Inc. v. 838116 Ontario Inc., the Plaintiff, a North Carolina company, had obtained a judgment in North Carolina against purchasers of goods for failure to pay for goods delivered.   The Plaintiff brought the subject action in Ontario for recognition of the North Carolina judgment.  The Defendants counterclaimed for $500,000. The Plaintiff brought a motion to dismiss the counterclaim on the basis that the Ontario did not have jurisdiction over the counterclaim and that North Carolina was a more appropriate forum to determine the counterclaim.  Our Firm acted for the Plaintiff on the motion. The Defendants argued that the Plaintiff had attorned to the Ontario court’s jurisdiction over the counterclaim by commencing the recognition action. The Judge rejected that argument, and found that that Plaintiff had not attorned to the jurisdiction of the Ontario court.  Then, applying the factors set out by the Supreme Court of Canada in Club Resorts … Read More

Bad Faith Claims against Canadian Liability Insurers: Sober Second Thought

Gilbertson Davis LLPCivil Litigation, Commercial Law, Contract Disputes, Cross-Border Litigation, Insurance, Of Interest to US Counsel0 Comments

No aspect of insurance defence counsel’s tripartite retainer with an insured and a liability carrier more frequently strains the divided loyalty more than the over-limits exposure.  Whether it is an automobile policy responding to a catastrophic bodily injury claim, or a general liability policy building collapse or fire attributed to the carelessness of a tradesperson, the cost of indemnity has increased dramatically in relation to standard million-dollar policy limits.  Those limits have not changed in Canada for over a decade. It is a matter of economic conflict between two independent markets.  In a competition for premiums, underwriters have failed to market increases in policy limits, while medical and rebuilding costs for commercial buildings have soared.  This simple divergence of demand-and-supply curves has many ramifications for tort law in Canada.  Here, I discuss one issue, the rise and apparent panic in the insurance industry over the importation of an American doctrine … Read More

Ontario Court Given Jurisdiction over Internet Defamation Claim

Gilbertson Davis LLPCivil Litigation, Cross-Border Litigation, Information Technology, Injunction & Specific Performance0 Comments

A recurring issue in online defamation cases is the proper jurisdiction where a claim should be commenced. In many cases, the people who read the allegedly defamatory statements will be located across the planet, meaning that a publisher of such materials may find themselves having to defend claims brought far away from their actual home jurisdiction. In Goldhar v. Haaretz.com et al., Justice Faieta allowed an Ontario claim to continue for allegedly defamatory statements posted online by an Israeli-based newspaper organization. The defendants brought a motion to have the plaintiff’s claim stayed, arguing that the action should be heard in Israel, as the majority of the publication of the article was in Israel, and only 200-300 persons in Canada read the English online article. The court ultimately concluded that it did have jurisdiction over the defendants, and the plaintiff’s claim could continue in Ontario. By finding that at least some … Read More

Court Considers Effect of Non-Exclusive Jurisdiction Clause

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Contract Disputes, Cross-Border Litigation0 Comments

In Silveira v. FY International Auditing & Consulting Corp., the Plaintiff commenced an action in Ontario alleging breach of an agreement and misrepresentation.  Less than a month later, one of the Defendants commenced an action in British Columbia against the Plaintiff based on the same agreement.   The Defendants acknowledged that the Ontario had jurisdiction simpliciter, but brought a motion to stay the Plaintiff’s action on the grounds that Ontario was forum non conveniens and that the action should proceed in British Columbia. The Court found that there were not sufficient evidence to conclude, as the Plaintiff argued, that B.C. action was “tactical”.  Further, the Court stated that the fact that the Plaintiff started her action in Ontario first was not a basis to determine which forum was more appropriate for litigation of the dispute. The Court found that both the Plaintiff and the Defendants, and their evidence, had equally strong connections to Ontario and … Read More

Court Finds No Real And Substantial Connection Despite Ontario Contract

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Contract Disputes, Cross-Border Litigation0 Comments

CIBC FirstCaribbean v. Glasford involved an equitable mortgage held by a Barbados bank, FirstCaribbean, over a St. Kitts property owned by one of the Plaintiffs, Glasford, a Barbados resident.   The second Plaintiff, Vinton, was Glasford’s son, who lived in Toronto.  Vinton was the second mortgagor on the property.  The Plaintiffs claimed that they were induced into the mortgage by the Defendant’s alleged misrepresentations.  The Plaintiffs had already commenced an action in St. Kitts regarding the mortgage, as had FirstCaribbean in St. Kitts to enforce the mortgage. FirstCaribbean brought a motion to dismiss or permanently stay the Ontario action.  The Judge considered whether Ontario had jurisdiction by “a real and substantial connection between Ontario, the subject matter of the litigation and the defendant”.  The Judge found that the mortgage was presumptively connected to Ontario because the mortgage agreement was made in Ontario.  Specifically, Vinton signed and returned the mortgage agreement by mail … Read More

Court Stays Action in Favour of Mexico Arbitration

Andrew Ottaway, B.A. (Hons.), LL.B.Civil Litigation, Commercial Law, Commercial Litigation, Contract Disputes, Cross-Border Litigation, Employment & Wrongful Dismissal0 Comments

In Kavanagh v. Magna, the Plaintiff alleged that he was wrongfully dismissed by his Mexican employer.  The Plaintiff sued an Ontario affiliate company of his Mexican employer in the Ontario Courts.  The Plaintiff had also brought an arbitration proceeding against his Mexican employer in the Mexico.  The Defendants sought to have the Ontario action dismissed on the grounds that the Ontario Courts lacked jurisdiction of over the dispute.  The Ontario Court applied a two part test considering i) whether it had jurisdiction, and ii) whether it should assume jurisdiction. i) The Ontario Court found that the dispute did not have a “real and substantial connection” to Ontario: the Plaintiff signed his employment contract in Mexico, worked in Mexico, and was terminated in Mexico.   There was also a clause in his employment contract agreeing to resolve disputes in accordance with the laws of Mexico.   Nevertheless, the Judge found that the Ontario … Read More

London Court of International Arbitration (LCIA) – New Rules Include Expanded Provisions on Emergency Relief

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorArbitration, Business Litigation, Commercial Arbitration, Commercial Litigation, Copyright Infringement, Cross-Border Litigation, Enforcement of Foreign Arbitral Awards, Enforcement of Foreign Judgments, Fashion Industry, Industrial Design, Injunction & Specific Performance, Intellectual Property, International Sale of Goods, Mareva Injunction, Of Interest to US Counsel, Preservation Orders, Textiles and Apparel0 Comments

The London Court of International Arbitration has announced that its new LCIA Arbitration Rules have been formally adopted by the LCIA Court and the LCIA Board of Directors and will come into effect on 1 October 2014. Article 9B of the new LCIA Arbitration Rules – Emergency Arbitrator provides that in the case of emergency at any time prior to the formation or expedited formation of the Arbitral Tribunal , any party may apply to the LCIA Court for the immediate appointment of a temporary sole arbitrator to conduct emergency proceedings pending the formation or expedited formation of the Arbitral Tribunal. By Article 9.14 of the New Rules, Article 9B does not apply where the parties have concluded their arbitration agreement before 1 October 2014 have not agreed in writing to ‘opt in’ to Article 9B, or the parties have agreed in writing at any time to ‘opt out’ of Article 9B. Reference should be had in this regard to … Read More

Service of Foreign Process (including U.S. Proceedings) in Ontario, Canada

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorCasino Debt Recovery, Cross-Border Litigation, Enforcement of Foreign Arbitral Awards, Enforcement of Foreign Judgments, Forum Challenges, International Distribution, International Joint Venture, International Sale of Goods, Jurisdictional Challenges, Of Interest to US Counsel, Travel & Tour Operators, Travel & Tourism0 Comments

Since 1989 Canada has been a member of Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, (the Hague Service Convention). The Hague Service Convention requires its member States to designate a “Central Authority” to accept incoming requests for service. The Central Authority in Canada, on the federal level, is the Attorney General for Canada, and the Central Authority on the provincial level, in Ontario is the Attorney General, the Ministry of the Attorney General or the Minister of Justice. In Ontario, service of foreign proceeding under the Hague Service Convention requires that a completed Request for Service Abroad of Judicial or Extrajudicial Documents Form together with the prescribed number of originating process documents and prescribed fee to the Ministry of the Attorney General for Ontario. There are alternatives to the Hague Service Convention service of foreign process in Ontario. If you are seeking advice or … Read More

International Sale of Goods Convention – New Members in 2014 and 2015

David Alderson, LL.B, LL.M (Commercial and Corporate), Lawyer, Qualified Arbitrator and MediatorCivil Litigation, Commercial and Contract Litigation, Commercial Arbitration, Commercial Litigation, Contract Disputes, Creditors Rights, Cross-Border Litigation, Distributors | Dealers, Forum Challenges, International Distribution, International Sale of Goods, Jurisdictional Challenges, Sale of Goods0 Comments

The United Nations Convention on Contracts for the International Sale of Goods (“CISG”) establishes a comprehensive code of legal rules governing the formation of contracts for the international sale of goods, the obligations of the buyer and seller in contracts for the international sale of goods, and the remedies for breach of contracts for the international sale of goods. Canada on accession to the CISG declared that, in accordance with article 93 of the Convention, the Convention would extend to Ontario (and other provinces named in the declaration). The Canadian International Sale of Goods Contracts Convention Act, S.C. 1991, c. 13, has been in effect in Ontario since 1992 because of the International Sale of Goods Act, R.S.O. 1990, c. I.10.  These two acts brought into effect in Canada the United Nations Convention on Contracts for the International Sale of Goods. The Ontario International Sale of Goods Act provides that the contracting parties “may … Read More

German Arbitral Award Recognized and Enforced by Ontario Court

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Arbitration, Commercial Arbitration, Cross-Border Litigation, Enforcement of Foreign Arbitral Awards0 Comments

The Ontario Court of Appeal recently released its endorsement in Alfred Wegener Institute v. ALCI Aviation Ltd., 2014 ONCA 398, upholding an order from the application judge that a German arbitral award be recognized and enforced in Ontario as if it were a judgment or order of the Ontario Superior Court of Justice. After the appellants failed to appear at the German arbitration and the Ontario application to enforce the German arbitral award, the appellants finally responded by bringing this appeal based on a technical argument under Article 35(2) of the International Commercial Arbitration Act, R.S.O. 1990, c. I.9, which required the party relying on the foreign arbitral award to supply a certified copy of the original award to the application judge.  The appellants argued that the translation of the arbitral award before the application judge was not a duly certified copy. The Court of Appeal rejected the appellant’s argument and held that the application judge could properly find that the arbitral award met … Read More

Court Dismisses Motion For Forum Non Conveniens

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Cross-Border Litigation0 Comments

In Central Sun Mining Inc. v. Vector Engineering Inc., 2014 ONSC 1849, the Ontario Superior Court of Justice addressed the moving defendants’ motion to dismiss or stay the action on the basis that Ontario was not the convenient forum to hear this action for damages arising from a landslide in Costa Rica.  The moving defendants argued that the claims were based on acts or omissions that occurred in Costa Rica and in the United States, most of the parties and witnesses lived outside Ontario and the evidence was located outside Ontario. Following on the Supreme Court of Canada decision in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, the burden of proof is on the party raising the forum non conveniens issue to show that another forum is in a better position to dispose fairly and efficiently of the litigation, and that another forum is clearly more appropriate than Ontario.  The following factors may be considered in … Read More