The Ontario Superior Court of Justice (“OSCJ”) recently released its decision in Costco Wholesale Corporation v. TicketOps Corporation, 2023 ONSC 573, granting an application to enforce judgments received by the applicant from the United States District Court (Western District of Washington at Seattle) and/or the underlying arbitral awards. At the same time, the OSCJ also rejected the Respondents’ motion to convert the application into an action.
Recognition of Awards
With regard to the Awards, the OSCJ advises as follows:
“In Ontario, foreign arbitral awards are enforceable through the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 (“ICAA”). The ICAA provides that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“Convention”) has force of law in Ontario. The Convention is set out in Schedule 1 to the ICAA. The ICAA also provides that the Model Law on International Commercial Arbitration (“Model Law”) has force of law in Ontario. The Model Law is set out in Schedule 2 to the ICAA.”
The OSCJ notes that the Convention and the Model Law both restrict the ability of our court to interfere with international arbitration proceedings and Article 36 of the Model Law, as well as article V of the Convention, limit the grounds on which enforcement of an international arbitral award may be refused. These grounds are to be construed narrowly.
In order to justify setting aside an arbitral award for reasons of fairness or natural justice, the conduct of the arbitral tribunal “must be sufficiently serious to offend our most basic notions of morality and justice” and judicial intervention for “alleged violations of the due process requirements of the Model Law will be warranted only when the tribunal’s conduct is so serious that is cannot be condoned under Ontario law”.
Recognition of Judgments
The OSCJ opined that the purpose of recognition and enforcement of foreign judgments in Ontario is to “allow a pre-existing obligation to be fulfilled”. Thus, barring exceptional circumstances “a court’s focus…is not on the substantive and procedural law on which the judgment is based, but instead on the obligation created by the judgement itself”. The Ontario court is not to “evaluate the underlying claim that gave rise to the dispute”, rather the Ontario court’s role is “not one of substance, but one of facilitation”.
All the Ontario court needs is proof that the judgment: (1) was rendered by a court of competent jurisdiction, (2) is final, and (3) is for a definite sum of money.
The Respondent raised defences of natural justice and public policy, which were ultimately rejected.
The OSCJ found that the amounts owing under the Awards “are ascertainable”, that the terms of the Awards are “clear as to what is expected from [the Respondent]”, and that the arbitration proceeding “was not contrary to Canadian notions of fundamental justice”, nor would the “recognition and enforcement of the Awards … be contrary to the public policy of Ontario”.
The OSCJ recognized that the Respondent was not entitled to relitigate the arbitration in Ontario and ordered the Respondent to pay the Applicant an amount in Canadian currency sufficient to purchase the amounts awarded to the applicant in the foreign proceedings, plus accrued interest.
At Gilbertson Davis LLP, our lawyers can assist you, your business, company, partnership or corporation in applying to the court for the recognition and enforcement in Ontario of your judgment or arbitration award obtained in another jurisdiction. Gilbertson Davis LLP lawyers have experience in proceedings involving Recognition and Enforcement of Foreign Judgments, Recognition and Enforcement of International Arbitration Awards, Commercial Litigation, Civil Litigation, Business Torts, and Business Litigation matters and can assist you in resolving your legal issues in a timely and cost-effective manner. Our mission is to provide creative, sensible, cost-effective, long-term resolutions to clients. Please contact Gilbertson Davis LLP to schedule a consultation.
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