Solecki v. Stroud Resources Ltd., 2017 BCSC 1130

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Solecki v. Stroud Resources Ltd., 2017 BCSC 1130 Date: 20170630 Docket: 15-3018 Registry: Victoria Between: Lucila de Lourdes Solecki and Josef Solecki Plaintiffs And: Stroud Resources Ltd. Defendant Before: The Honourable Madam Justice Dorgan Reasons for Judgment Counsel for the Plaintiffs: R. Olorunojowon Counsel for the Defendant: L.P. LeBlanc Place and Date of Hearing: Victoria, B.C. May 4, 2016; October 17-18, 2016; and January 6, 2017 Place and Date of Judgment: Victoria, B.C.

June 30, 2017 Nature of Application [ 1 ] This is an application by the plaintiffs, Mr. and Ms. Solecki, for a declaration that this court has the territorial competence to hear a claim for the enforcement of an “arbitral award” for $831,170.00 they claim was obtained in Mexico on August 26, 2013. [ 2 ] As Mexico is not a reciprocating jurisdiction, the award cannot simply be registered under the Court Order Enforcement Act , R.S.B.C. 1996, c. 78.

The plaintiffs must file a claim at common law and sue on the foreign judgment in order to have it enforced in British Columbia. [ 3 ] The Court Jurisdiction and Proceedings Transfer Act , S.B.C. 2003, c. 28 (the “ CJPTA ”), applies. [ 4 ] A notice of civil claim was filed by the plaintiffs on August 6, 2015, seeking an order to enforce the arbitral award. The notice of civil claim alleges, among other things, that: 5. the Plaintiffs brought an action for wrongful dismissal in Mexico and were successful. 6. the Defendants appealed the decision and lost the appeal in October 2013. 7.

The appellate court awarded the Plaintiffs 10,537,120.32 [pesos], which amounts to $831,170 [CAN] as at the date of this document. The amount represents arrears of unpaid wages and benefits. [ 5 ] The defendant filed a jurisdictional response on August 28, 2015, disputing that this court has jurisdiction over the defendant and asserting that this court ought not to exercise its jurisdiction over the defendant. The defendant also filed a response to civil claim on September 24, 2015. In its response, it asserted, in part, that: 1.

Pursuant to Rule 21-8 of the Supreme Court Rules the defendant has filed a Jurisdictional Response in Form 108 and disputes jurisdiction of this court over this matter. … 4. The plaintiffs have not pleaded facts in support of jurisdiction. 5. There is no real and substantial connection between British Columbia and the facts, if those facts are presumed to exist. 6. In the alternative, there are other more suitable jurisdictions to hear this matter and this court should decline to take jurisdiction.

7. While not attorning to this jurisdiction, the defendant says that the plaintiffs claim is without merit and ought to be dismissed. [ 6 ] During the hearing it was noted by the parties that when a jurisdictional response is filed, the defendant is at liberty to apply under Rule 21-8 to dismiss the claim because of a lack of jurisdiction. However, the defendant has not done that in this case.

The defendant takes the position that the rule is permissive and says that the defendant may apply to dismiss the claim based on the territorial competence of the court. [ 7 ] As a result, the plaintiffs say that in order to proceed with their claim, they must have a declaration that they have met the jurisdictional requirements to bring this action in this court. The plaintiffs say that this creates a two-stage process. The court must first consider whether or not it has the territorial competence to hear the action for enforcement.

The plaintiffs say this is the sole purpose of this application at this, the first stage in the process. [ 8 ] The plaintiffs submit that at the second stage, the court considers whether it should enforce the judgment. The plaintiffs say that the common law defences to the recognition and enforcement of a foreign award such as fraud, denial of natural justice, or public policy, are to be considered at the second stage. Background [ 9 ] The plaintiffs, Mr. and Ms.

Solecki, live in British Columbia. [ 10 ] The defendant, Stroud Resources Ltd. (“Stroud”), is a publicly traded company that was incorporated in 1983 pursuant to the Ontario Business Corporations Act . The defendant has no office in British Columbia and does no business here. [ 11 ] Stroud is the sole shareholder of Compaina Minera San Diego y La Espanola, S.A. de C.V. (“SDLA”). SDLA is incorporated in Mexico in accordance with Mexican laws. [ 12 ] The plaintiffs say that they were employees of Stroud; however, the defendant says that the plaintiffs were never directly employed by Stroud.

The defendant says that Mr. Solecki was employed by SDLA as a foreman at a mining site in Mexico between 2004 and 2006. Stroud says that Ms. Solecki was never employed by SDLA and that she was directly employed by Mr. Solecki. [ 13 ] It is unclear how long Mr. Solecki was potentially employed by SDLA. Some affidavits say he was employed beginning in November 2004 for a term of employment not exceeding two years and some documents say he was employed for approximately five years. There was some dispute about the termination of Mr.

Solecki’s employment and on March 16, 2012, the plaintiffs were each awarded damages of 98,600 pesos, which is approximately $7,500 USD (the “2012 award”).

The 2012 award is not being enforced in these proceedings. [ 14 ] The defendant’s evidence is that it was aware of this award but that it was not aware that the 2012 award was appealed nor was it served with any notice or granted the ability to participate in the appeal. [ 15 ] However, according to the plaintiffs, the 2012 award was appealed and on August 26, 2013, the plaintiffs say that they were awarded damages in the sum of 10,537,120.32 pesos — which is approximately $831,170 in Canadian dollars (the “2013 award”).

The award was made by the “United States of Mexico Federal Conciliation and Arbitration Committee No. 18 Guadalajara, Jalisco”. [ 16 ] The evidence seems to suggest that a copy of that award may have been provided to a Mr.

César David Seguia, who may or may not have been counsel or former counsel to the defendant, on September 18, 2013. [ 17 ] The plaintiffs say that they received an order for execution dated December 4, 2013; however, they say that SDLA has ceased mining work in Mexico and they have been unable to enforce their award there. [ 18 ] The plaintiffs say that they have attempted to recover this money from the defendant since this time.

The plaintiffs’ evidence includes emails dated between August 2014 and April 2015 where some negotiation is made regarding an amount owed. [ 19 ] The defendant, however, says that it had no knowledge of the 2013 award until these proceedings began and it says that the 2013 award was made without its knowledge or participation.

The defendant says that it has engaged legal counsel in Mexico to see how such an award could be made without its knowledge and without adequate service. [ 20 ] Over the objection of plaintiffs’ counsel at the close of the hearing on May 4, 2016, I adjourned the application and provided the plaintiffs time to adduce additional evidence regarding service or notice to the defendant of the appeal which led to the 2013 arbitral award. I also provided that the defendant had until August 8, 2016, to introduce additional evidence in response.

I was concerned about whether or not there was some evidence which could go to notice in accord with the principles of natural justice. [ 21 ] Both the plaintiffs and defendant introduced additional evidence. The evidence is controversial and gave rise to further arguments and appearances. Positions of the Parties [ 22 ] The plaintiffs say that as this is an action for the enforcement of a foreign judgment - an arbitral award, this court has the territorial competence to hear the matter. They say they have pleaded this and produced sufficient evidence to demonstrate that this is the case.

The plaintiffs say that, at this stage, the court should only be concerned with the question of whether or not this court has the territorial competence to hear the claim for enforcement of the judgment. [ 23 ] The plaintiffs say that, according to the CJPTA , the court needs only to consider whether or not the court has jurisdiction to hear the matter and if it does, whether it should decline to exercise that jurisdiction on the grounds that there is a “clearly more appropriate” forum to hear the proceeding. They say that the decision of whether or not the courts should enforce the foreign judgment should not be

considered at this point and should be left to the enforcement stage. [ 24 ] The defendant says that this court should decline to take jurisdiction at this stage because the judgment cannot be enforced in British Columbia and because there is a more appropriate forum. It also says this court should consider whether or not the plaintiffs gave the defendant notice of the proceedings, which ultimately led to the arbitral award. Law [ 25 ] The relevant sections of the CJPTA are: Application of this

Part 2.

(1) In this Part, "court" means a court of British Columbia.

(2) The territorial competence of a court is to be determined solely by reference to this Part. Proceedings against a person 3. A court has territorial competence in a proceeding that is brought against a person only if … (

e) there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based. Real and substantial connection 10. Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based, a real and substantial connection between British Columbia and those facts is presumed to exist if the proceeding … (

k) is for enforcement of a judgment of a court made in or outside British Columbia or an arbitral award made in or outside British Columbia … Discretion as to the exercise of territorial competence 11.

(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including (

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum, (

b) the law to be applied to issues in the proceeding, (

c) the desirability of avoiding multiplicity of legal proceedings, (

d) the desirability of avoiding conflicting decisions in different courts, (

e) the enforcement of an eventual judgment, and (

f) the fair and efficient working of the Canadian legal system as a whole. [ 26 ] The plaintiffs rely on s. 3 which provides that a court has territorial competence in a proceeding that is brought against a person only if there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based. [ 27 ]

Section 10 explains what a real and substantial connection is. The plaintiffs say that their claim falls within ss. 10(

k) which provides that a real and substantial connection between British Columbia and those facts is presumed to exist if the proceeding “ is for enforcement of a judgment of a court made in or outside British Columbia or an arbitral award made in or outside British Columbia. ” [ 28 ] However, s. 11 goes on to say that even if the territorial competence of this court has been established on the facts, the court must then consider whether to decline jurisdiction on the basis that a court of another state is a more appropriate forum in which to hear the proceeding — forum non conveniens . [ 29 ] Under s. 11, the burden of proof shifts to the defendant to show that there is a more appropriate forum or that a various defence can be raised: see JTG Management Services Ltd. v.

Bank of Nanjing Co. Ltd., 2014 BCSC 715 at para. 61 . [ 30 ] The leading case on the territorial competence for enforcement of foreign judgments at common law is Chevron Corp. v. Yaiguaje , 2015 SCC 42 . In that case, the highest Ecuadorian court ordered damages of over $9 billion against Chevron Corporation because of environmental damage that occurred while Chevron Corporation was working in Ecuador. Chevron Corporation ceased

operations in Ecuador and the plaintiffs brought their claim to Ontario for the enforcement of their award.

The defendant, ChevronCorporation, was not a resident of Ontario nor did it carry on business in Ontario, so they challenged the ability to bring the case toOntario because there was no real and substantial connection. [31] The Supreme Court reiterated that there has never been a requirement for a real and substantial connection between thedefendant or the action and the enforcing court for jurisdiction to exist in recognition and enforcement proceedings (Chevron Corp. atpara. 28). [32] The genesis of this jurisprudence came from Morguard Investments Ltd. v.

De Savoye, (SCC), [1990] 3 S.C.R.1077, and later Beals v. Saldanha, 2003 SCC 72.

In Beals at para. 29, Major J. said that based on the principles of international comity, itis reasonable that a domestic court should recognize and enforce a foreign judgment where the foreign court properly assumedjurisdiction on the same basis that the domestic court would have. [33] The Supreme Court in Chevron Corp. then went on to summarize the law in regard to how the real and substantial connectiontest should be applied with regards to the enforcement of foreign judgments: [27] I agree with the Ontario Court of Appeal and the motion judge that the approach favoured by Chevron is sound neither in law norin policy.

Canadian courts, like many others, have adopted a generous and liberal approach to the recognition and enforcement offoreign judgments. To recognize and enforce such a judgment, the only prerequisite is that the foreign court had a real and substantialconnection with the litigants or with the subject matter of the dispute, or that the traditional bases of jurisdiction were satisfied. It is truethat in any case in which a Canadian court exercises authority over a party, some basis must exist for its doing so.

It does not follow,however, that jurisdiction is and can only be established using the real and substantial connection test, whether that test is satisfied by theexistence of assets alone or on another basis. In actions to recognize and enforce foreign judgments within the limits of the province, it isthe act of service on the basis of a foreign judgment that grants an Ontario court jurisdiction over the defendant. I arrive at thisconclusion for several reasons.

First, this Court has rightly never imposed a requirement to prove a real and substantial connectionbetween the defendant or the dispute and the province in actions to recognize and enforce foreign judgments. Second, the distinctprinciples that underlie actions for recognition and enforcement as opposed to actions at first instance support this position. Third, theexperiences of other jurisdictions, convincing academic commentary, and the fact that comparable statutory provisions exist in provinciallegislation reinforce this approach.

Finally, practical considerations militate against adopting Chevron’s submission. [Emphasis added.] [34] The Supreme Court of Canada also acknowledged that the approach under the CJPTA is slightly different than the common lawapproach that was applied in Ontario in Chevron Corp. The results are similar, however the CJPTA uses a mandatory presumption toestablish that a real and substantial connection exists for the enforcement of a foreign judgment.

At para. 73, Gascon J. explained: [73] I acknowledge that the Uniform Law Conference of Canada took a different approach in drafting the Court Jurisdiction andProceedings Transfer Act (“CJPTA”) (online) in the 1990s. The CJPTA has been passed, with some variations, in five jurisdictions(Saskatchewan, Prince Edward Island, Yukon, British Columbia, and Nova Scotia), though it has only come into force in three of them.Section 3(

e) of the CJPTA provides that one circumstance in which a court has territorial competence in a proceeding is if “there is a realand substantial connection between [enacting province or territory] and the facts on which the proceeding against that person isbased” (emphasis in original; text in brackets in original).

Section 10 states that a real and substantial connection “is presumed to exist ifthe proceeding ... (

k) is for enforcement of a judgment of a court made in or outside [enacting province or territory] or an arbitral awardmade in or outside [enacting province or territory]” (emphasis in original; text in brackets in original). Thus, the foreign judgmentcreates a rebuttable presumption of jurisdiction, which the judgment debtor can contest. Yet, in spite of this possibility, V. Black, S. G.A. Pitel and M.

Sobkin point out that, as of 2012, “no defendant [had] succeeded in rebutting a s. 10 presumption” in the provinces inwhich the CJPTA was in force at that time: Statutory Jurisdiction: An Analysis of the Court Jurisdiction and Proceedings Transfer Act(2012), at pp. 146-47. As this Court observed in Van Breda, “[l]egislatures and courts may adopt various solutions to meet theconstitutional requirements and the objectives of efficiency and fairness that underlie our private international law system”: para. 34.

Thelegislatures are therefore free to adopt legislation like the CJPTA that departs from the common law, so long as they do so withinconstitutional limits. [35] However, after explaining the principles behind why Canadian courts accept the jurisdiction for enforcing foreign judgments,Gascon J. made sure to emphasize that the existence of jurisdictional competency does not limit a defendant’s ability to raise defensesregarding why a court should not enforce a judgment.

Just because a court has territorial competence to hear a matter, it does not takeaway the ability of the defendant to argue that a discretionary stay is appropriate on the basis that there is a more appropriate forum(forum non conveniens) or the defence may raise any available common-law defence to recognition and enforcement such as fraud,denial of natural justice, or public policy (at para. 77). [36] In Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592 at paras. 21 to 22, the British Columbia Court of Appeal explainedthat s. 10 of the CJPTA creates a mandatory presumption with basic facts.

The basic facts are those set out in s. 10 to demonstrate whythere is a real and substantial connection. These facts are taken to be proven if they are pleaded. The Court of Appeal said that while thepresumption is rebuttable, it is likely to be determinative in almost all cases. [37] In JTG Management Services Ltd. this court dealt with the mandatory presumption created by the real and substantialconnection test as set out in s. 10 and how it applied on the question of whether the court had territorial competence to hear certainmatters.

Specifically, Maisonville J. had to consider whether the court had the territorial competence over a letter of credit matter wherethe issuing bank was in China but the other parties were in Canada. The court concluded that at the stage of deciding whether or not acourt has territorial competence over a matter, the court need only assess and consider whether or not the plaintiff has pleaded facts thatfall within one of the enumerated presumptions of s. 10.

Justice Maisonville explained beginning at para. 34: [34] The plaintiff need only show an “arguable case” that they can establish facts by affidavit which, if true, would provide thefoundation for the Court’s jurisdiction. Accordingly, the Court is not charged at this stage with assessments of truth, only a determinationof whether there are facts that provide an arguable case for jurisdiction before the Court.

… [37] This path of an examination of the pleaded facts, as amplified by affidavit, to determine territorial competence was echoed by Ballance J. in The Original Cakerie v. Renaud , 2013 BCSC 755 (“ Original Cakerie ”), at paras. 22-23 : [22] A determination of the court’s territorial competence starts with an examination of the plaintiff’s pleadings. Where the plaintiff pleads circumstances that give rise to the presumption of a real and substantial connection under s. 10 , it need not support its allegations with evidence.

Where jurisdictional facts are not pleaded, it is open to the plaintiff to adduce affidavit evidence to raise the presumption of territorial competence. In cases where the defendant tenders evidence that challenges the plaintiff’s jurisdictional facts or to demonstrate that the plaintiff’s claim is tenuous or without merit, the plaintiff is required to adduce evidence that satisfies the court that it has a good, arguable case that the contentious facts can be established: Stanway ; Purple Echo Productions , Right Business Ltd. v.

Affluent Public Ltd. , 2011 BCSC 783 . [23] Jurisdictional facts need not be established on the balance of probabilities. The court is not tasked with making a determination as to whether those jurisdictional facts are actually true: [ Laxton v. Anstalt, 2011 BCCA 212 ]. The judicial objective at this early stage of the litigation is to determine whether there are facts, alleged or deposed which, if true, would provide a foundation for jurisdiction.

The applicable burden is to establish an arguable case. [38] It is important to recall that on an application such as this, the judge is to “refrain from evaluating the evidence of the parties unless the facts are specifically contested by the parties” and it is improper to require the application judge to “prematurely decide the merits of the case” ( Spar Aerospace at para. 32).

Rather the motions judge must take as true any basic facts plead that establish a mandatory presumption under s.10 of the Court Jurisdiction and Proceedings Transfer Act ( Stanway at para. 22 ); or, if the facts are contested, determine whether the plaintiff has shown a arguable case that the facts can be established ( Purple Echo at para. 34). [39] Accordingly, if the plaintiff pleads facts that fall within one of the enumerated presumptions of s. 10 of the Court Jurisdiction and Proceedings Transfer Act , the British Columbia Court has territorial competence to hear the action. [ 38 ] It should also be noted that while Club Resorts Ltd. v.

Van Breda , 2012 SCC 17 , is one of the leading cases for determining whether a real and substantial connection exists, the Supreme Court of Canada said in Chevron Corp. that the principles in Van Breda do not extend to the enforcement of foreign judgments. At para. 27 of Chevron Corp. , Gascon J. explained that in actions to recognize and enforce foreign judgments within a province, it is the act of service on the basis of a foreign judgment that grants a court jurisdiction over the defendant.

Furthermore, unlike in Van Breda where the court needed to articulate the test that a court of first instance was required to meet in order to show a real and substantial connection, the test for a real and substantial connection in enforcing a foreign judgment is already provided by the mandatory presumption found in s. 10 of the CJPTA . [ 39 ] Once territorial competence has been established on the facts as pleaded by the plaintiff, the onus then falls to the defendant to displace the plaintiffs’ choice of forum. [ 40 ]

Section 11 provides a codification of the common law of forum non conveniens . However, while the test is legislated, the factors listed in ss. 11(2) are not an exhaustive list and will depend on the circumstances of each case. Justice Ballance in The Original Cakerie Ltd. v. Renaud , 2013 BCSC 755 at para. 53 , provided a list of factors for the court to consider when deciding whether or not it should exercise its jurisdiction to decline territorial competence in favour of another more appropriate jurisdiction.

These include: (1) where each party resides; (2) where each party carries on business; (3) where the cause of action arose; (4) where the loss or damage occurred; (5) any juridical advantage to the plaintiff in this jurisdiction; (6) any juridical disadvantage to the defendant in this jurisdiction; (7) the convenience or inconvenience to potential witness; (8) the cost of conducting the proceeding in this jurisdiction; (9) the applicable substantive law; (10) the difficulty and cost of proving foreign law, if necessary; (11) whether there are parallel proceedings in any other jurisdiction. [ 41 ] It is also important to keep in the mind that not only does the burden of proof rest on the party asking the court to decline jurisdiction based on forum non conveniens , but that party must show that it would be more efficient or fair to the point of denying the plaintiff the benefits of their choice of forum: see Van Breda at paras. 108-109 and Canadian Olympic Committee v.

VF Outdoor Canada Co. , 2016 BCSC 238 at para. 35 . [ 42 ] Besides s. 11, which allows a court to decline jurisdiction based on forum non conveniens , the common law provides a number of defences to the recognition and enforcement for foreign judgments, that is, fraud, denial of natural justice, or public policy. The leading case on this is Beals .

In Beals at para 60 , Major J. emphasized that a court enforcing a judgment has a heightened duty to protect the interests of defendants when the judgment to be enforced is a foreign one and that the domestic court must be satisfied that “minimum standards of fairness” have been applied to the defendants by the foreign court. At this point, the court needs to consider the

process that was undertaken and whether it conformed with the Canadian conception of natural justice: 64. The defence of natural justice is restricted to the form of the foreign procedure, to due process, and does not relate to the merits of the case. The defence is limited to the procedure by which the foreign court arrived at its judgment. However, if that procedure, while valid there, is not in accordance with Canada’s concept of natural justice, the foreign judgment will be rejected.

The defendant carries the burden of proof and, in this case, failed to raise any reasonable apprehension of unfairness. [Emphasis added.] [ 43 ] Justice Major went on at para. 65 to say that in Canada, natural justice has frequently been viewed to include, but is not limited to, the necessity that a defendant be given adequate notice of the claim made against him and that he be granted an opportunity to defend. [ 44 ] However, the plaintiffs argue that this court, at this stage in the process, does not have to consider these defenses.

They submit that this application is only concerned with whether or not the court has the territorial competence to hear a claim for the enforcement the order, not whether or not it should enforce the order. [ 45 ] I agree with the plaintiffs on this issue. In Chevron at para. 77, the Supreme Court said that: [77] In closing on this first issue, I wish to emphasize that when jurisdiction is found to exist, it does not necessarily follow that it will or should be exercised: A. Briggs, The Conflict of Laws (3rd ed. 2013), at pp. 52-53; see also Van Breda , at para. 101 .

Establishing jurisdiction merely means that the alleged debt merits the assistance and attention of the Ontario courts.

Once the parties move past the jurisdictional phase, it may still be open to the defendant to argue any or all of the following, whether by way of preliminary motions or at trial: that the proper use of Ontario judicial resources justifies a stay under the circumstances; that the Ontario courts should decline to exercise jurisdiction on the basis of forum non conveniens ; that any one of the available defences to recognition and enforcement (i.e. fraud, denial of natural justice, or public policy) should be accepted in the circumstances; or that a motion under either Rule 20 (summary judgment) or Rule 21 (determination of an issue before trial) of the Rules should be granted.

The availability of these potential arguments, however, does not oust the jurisdiction of the Ontario courts over the plaintiffs’ action for recognition and enforcement. [Emphasis added.] [ 46 ] At this point, the parties in the case at bar are still at the jurisdiction phase where this court must determine whether or not it has the territorial competence to even entertain a claim for the enforcement of the judgment. These parameters are set by the CJPTA .

This court is to consider whether there is a real and substantial connection and whether the court should decline to take jurisdiction because there is a more appropriate forum. The issues regarding the enforceability of the foreign judgment, however prevalent they are, must be left to be decided when the more fulsome application for enforcement is made, namely at the second stage of the two-stage process to enforce.

Discussion [ 47 ] I am satisfied that in this matter, territorial competence is presumed to exist in respect to the claim pleaded by the plaintiffs. [ 48 ] The plaintiffs have pleaded that their claim is for the enforcement of an arbitral award made in Mexico, which falls under s. 10 (

k) of the CJPTA . There is little else they are required to demonstrate in order to meet the presumption that there is a real and substantial connection under ss. 3 and 10 (k). [ 49 ] The defendant has tendered some evidence that challenges the plaintiffs’ jurisdictional facts as pled and argues that this evidence demonstrates that the plaintiffs’ claim is tenuous or without merit. The evidence tendered by the defendant goes largely to notice.

The defendant also questions the authenticity of the award and notes that there is little or no evidence supporting the nature of the award and whether or not it is in fact even a valid judgment. [ 50 ] As a result, the plaintiffs adduced some evidence which goes to satisfy the court that the plaintiffs have a good, arguable case that the contentious facts can be established. However, it is also important to remember that the threshold for establishing territorial competence is not a high one ( JTG Management Services Ltd. at para. 59 ). [ 51 ] I am satisfied that the plaintiffs have done that in this case.

The plaintiffs have adduced some evidence which goes to the notice issues and the issues of natural justice raised by the defendant. [ 52 ] On this application, the plaintiffs have produced documents which appear to be the arbitral award from Mexico as well as documents that they say establish that the defendant was served with notice of the appeal. They also produced some evidence regarding the parties’ relationship and negotiations that occurred following the award. The plaintiffs also included evidence that they say goes to their attempt to enforce the award in Mexico.

Finally, the plaintiffs also included affidavit evidence where they say the defendant was informed of the process of the award and the underlying facts of the original dispute. It will be for the court at the second stage of the proceedings to evaluate and weigh that evidence. [ 53 ] For the purposes of the application before me, I am satisfied that the plaintiffs have demonstrated that they have an arguable case that they have evidence which, if proved, would provide the foundation for the court’s jurisdiction to enforce.

In reaching that conclusion, I am satisfied there is at least some evidence that goes to meeting the minimal standards of natural justice. [ 54 ] As the plaintiffs have met the presumption of territorial competence, the onus now falls on the defendant to persuade this court to displace the plaintiffs’ choice of forum. [ 55 ] The defendant submits that there is a more appropriate forum because even if the plaintiffs are successful, they cannot enforce the judgment here because the defendant has no business interests or assets in British Columbia.

It also submits that because the defendant and its assets are in Ontario, the balance of convenience weighs in favour of having this claim for enforcement be heard there. [ 56 ] The plaintiffs submit that this should not be a barrier to jurisdiction because if they are successful in their claim to enforce the

judgment in British Columbia, they could then apply to have the judgment registered in Ontario for enforcement purposes. [ 57 ] The plaintiffs also submit that the balance of convenience is split. The plaintiffs are now residents of British Columbia and it would be inconvenient for either party to have to conduct their litigation from across the country. [ 58 ] I am not persuaded that relevant evidence is not easily transferable between British Columbia or Ontario, given that most of the evidence is likely correspondence and documents from Mexico or parties that now reside in either British Columbia or Ontario.

And there has been no evidence or argument by the defendant to persuade me that the law of enforcement of a foreign judgment is different between the jurisdictions or that conducting the hearing in British Columbia would result in conflicting judgments or undermine the fair and efficient workings of the Canadian legal system. [ 59 ] Taking into account s. 11 of the CJPTA and the factors enumerated in The Original Cakerie case, I am not persuaded by the defendant that there is a more appropriate forum so as to displace the plaintiffs’ right to choose their forum. [ 60 ] Accordingly, the plaintiffs are entitled to the order they seek. [ 61 ] Costs will be in the cause. “J.L.

Dorgan, J.” The Honourable Madam Justice Dorgan