2012 QCCA 1827, 2012 QCCA 1827

Iraq (State of) c. Heerema Zwijndrecht, b.v. 2012 QCCA 1827 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC REGISTRY OF MONTREAL N o : 500-09-021782-115 ( 500-17-061708-106 ) MINUTES OF THE HEARING DATE: October 10, 2012 THE HONOURABLE NICHOLAS KASIRER, J.A. APPELLANTS ATTORNEYS STATE OF IRAQ, IN ITS CAPACITY AS THE (STATE) ORGANIZATION WITHOUT ARTIFICIAL PERSONALITY THE GENERAL ESTABLISHMENT OF IRAQI PORTS CENTRAL BANK OR IRAQ Mtre Patrick Ferland Mtre Elizabeth Neelin HEENAN BLAIKIE RESPONDENT ATTORNEYS HEEREMA ZWIJNDRECHT B.V. Mtre Hugo A. Babos-Marchand Mtre George J. Pollack DAVIES WARD PHILLIPS & VINEBERG

MOTION TO STRIKE PORTIONS OF RESPONDENT'S FACTUM AND SCHEDULES. Clerk: Marie-Laurence Brunet Court Room: RC.18 HEARING 9 h 33 Commencement of the hearing. 9 h 33 Submissions by Mtre Ferland. 9 h 57 Submissions by Mtre Babos-Marchand. 10 h 06 Reply by Mtre Ferland. 10 h 07 Suspension of the hearing. 10 h 13 Resumption of the hearing. 10 h 14 BY THE JUDGE : For judgment - see following page. 10 h 16 End of the hearing.

Marie-Laurence Brunet Clerk JUDGMENT [ 1 ] The petitioners move to strike portions of respondent’s factum and schedules, relying on articles 2, 20 and 46 C.C.P. [ 2 ] The petitioners have appealed a judgment of the Superior Court which recognized a judgment of the Court of Appeal of The Hague in the Netherlands. They argue, inter alia , that the Dutch courts did not have jurisdiction and that, in any event, the respondent had failed to furnish translations from Dutch to English properly authenticated under Quebec law.

[ 3 ] In its factum, the respondent states that corruption and violence in Iraq, and the presence of a totalitarian government there at the relevant time, precluded action from being taken before the Iraqi courts. The Dutch courts should therefore be recognized as a forum of necessity based on

article 3136 C.C.Q. The respondent also provides an explanation of the reasons for which it found providing authenticated translations to be impossible. [ 4 ] The petitioners say that the respondent has provided no evidence for these assertions, describing them as “new facts” in respect of which judicial notice cannot properly be taken.

Accordingly the references to these facts and the attending schedules should be struck from the respondent’s factum. [ 5 ] Moreover, the petitioners allege that the respondents failed to satisfy the requirement that translation authenticated in Quebec be provided pursuant to article 786(3) C.C.P. for the recognition of foreign judgments.

They say that the respondent’s explanation relies on materials concerning the availability of certified translators that were not introduced into evidence in first instance and thus should be struck from the record on appeal. [ 6 ] In my view the petitioners’ conclusions to strike turn, at least indirectly, on considerations relating to the admissibility of indispensable new evidence on appeal and the sometimes fine line to be drawn between new evidence and facts for which a court can take judicial notice.

The matter is complicated further by reason of the context of default proceedings in first instance. [ 7 ] The admissibility of new evidence is the proper province of the Court under

article 509, para. 2 C.C.P., and not of a judge in chambers. Accordingly, the interests of justice require that the motion to strike be referred to the Court hearing the appeal on the merits. FOR THIS REASON , the undersigned: [ 8 ] REFERS the motion to the Court, [ 9 ] Costs to follow suit. NICHOLAS KASIRER, J.A.