Court of Appeal States that Security for Costs Should Not be Treated Differently for Recognition and Enforcement Actions

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Appellate Advocacy, Business Litigation, Civil Litigation, Commercial and Contract Litigation, Commercial Litigation, Corporate Litigation, Cross-Border Litigation, Enforcement of Foreign Judgments, Of Interest to US Counsel0 Comments

Yaiguaje v. Chevron Corporation, 2017 ONCA 741 arose from an action by the Plaintiffs to enforce an Ecuadorean judgment in Ontario against the Defendant.   The Defendants obtained summary judgment dismissing the Plaintiffs’ claim.  After the Plaintiffs appealed, the Defendant sought a security for costs against the Plaintiffs, who were non-Ontario residents from Ecuador.  

The Plaintiffs argued that security for costs should not be ordered because of, among other reasons, the unique nature of a recognition and enforcement action.  The Plaintiffs relied on the Supreme Court of Canada decision on jurisdiction in the same action: Chevron Corp v. Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69.  The Plaintiffs argued that the Supreme Court’s decision required courts to treat recognition and enforcement cases in a different manner than first instance actions.

The Court of Appeal confirmed that courts should take a “generous” approach in finding jurisdiction in recognition and enforcement actions.  However, the Court of Appeal stated that security for costs of an appeal in a recognition and enforcement action should not be treated differently than cases involving domestic litigants.  The Court stated that the Plaintiffs would have had to pay security for costs if they were domestic litigants.  The Court ordered the Plaintiffs to pay security for costs of the appeal and the underlying action.  

The lawyers at Gilbertson Davis LLP have experience in cross-border litigation, including recognition and enforcement actions, and in security for costs motions.  Please contact us for an initial consultation.

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About the Author
Andrew Ottaway, B.A. (Hons.), LL.B.

Andrew Ottaway, B.A. (Hons.), LL.B.

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