Chevron Corporation v. Chevron Canada Limited, 2015 SCC 42

SUPREME COURT OF CANADA Citation: Chevron Corp. v.

Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69 Date: 20150904 Docket: 35682 Between: Chevron Corporation and Chevron Canada Limited Appellants and Daniel Carlos Lusitande Yaiguaje, Benancio Fredy Chimbo Grefa, Miguel Mario Payaguaje Payaguaje, Teodoro Gonzalo Piaguaje Payaguaje, Simon Lusitande Yaiguaje, Armando Wilmer Piaguaje Payaguaje, Angel Justino Piaguaje Lucitante, Javier Piaguaje Payaguaje, Fermin Piaguaje, Luis Agustin Payaguaje Piaguaje, Emilio Martin Lusitande Yaiguaje, Reinaldo Lusitande Yaiguaje, Maria Victoria Aguinda Salazar, Carlos Grefa Huatatoca, Catalina Antonia Aguinda Salazar, Lidia Alexandria Aguinda Aguinda, Clide Ramiro Aguinda Aguinda, Luis Armando Chimbo Yumbo, Beatriz Mercedes Grefa Tanguila, Lucio Enrique Grefa Tanguila, Patricio Wilson Aguinda Aguinda, Patricio Alberto Chimbo Yumbo, Segundo Angel Amanta Milan, Francisco Matias Alvarado Yumbo, Olga Gloria Grefa Cerda, Narcisa Aida Tanguila Narvaez, Bertha Antonia Yumbo Tanguila, Gloria Lucrecia Tanguila Grefa, Francisco Victor Tanguila Grefa, Rosa Teresa Chimbo Tanguila, Maria Clelia Reascos Revelo, Heleodoro Pataron Guaraca, Celia Irene Viveros Cusangua, Lorenzo Jose Alvarado Yumbo, Francisco Alvarado Yumbo, Jose Gabriel Revelo Llore, Luisa Delia Tanguila Narvaez, Jose Miguel Ipiales Chicaiza, Hugo Gerardo Camacho Naranjo, Maria Magdalena Rodriguez Barcenes, Elias Roberto Piyahuaje Payahuaje, Lourdes Beatriz Chimbo Tanguila, Octavio Ismael Cordova Huanca, Maria Hortencia Viveros Cusangua, Guillermo Vincente Payaguaje Lusitante, Alfredo Donaldo Payaguaje Payaguaje and Delfin Leonidas Payaguaje Payaguaje Respondents - and -

International Human Rights Program at the University of Toronto Faculty of Law, MiningWatch Canada, Canadian Centre for International Justice and Justice and Corporate Accountability Project Interveners Coram: McLachlin C.J. and Abella, Rothstein, Cromwell, Karakatsanis, Wagner and Gascon JJ. Reasons for Judgment: (paras. 1 to 96) Gascon J. (McLachlin C.J. and Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ. concurring) Chevron Corp. v. Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69 Chevron Corporation and Chevron Canada Limited Appellants v.

Daniel Carlos Lusitande Yaiguaje, Benancio Fredy Chimbo Grefa, Miguel Mario Payaguaje Payaguaje, Teodoro Gonzalo Piaguaje Payaguaje, Simon Lusitande Yaiguaje, Armando Wilmer Piaguaje Payaguaje, Angel Justino Piaguaje Lucitante, Javier Piaguaje Payaguaje, Fermin Piaguaje, Luis Agustin Payaguaje Piaguaje, Emilio Martin Lusitande Yaiguaje, Reinaldo Lusitande Yaiguaje, Maria Victoria Aguinda Salazar, Carlos Grefa Huatatoca, Catalina Antonia Aguinda Salazar, Lidia Alexandria Aguinda Aguinda, Clide Ramiro Aguinda Aguinda, Luis Armando Chimbo Yumbo, Beatriz Mercedes Grefa Tanguila, Lucio Enrique Grefa Tanguila, Patricio Wilson Aguinda Aguinda, Patricio Alberto Chimbo Yumbo, Segundo Angel Amanta Milan, Francisco Matias Alvarado Yumbo, Olga Gloria Grefa Cerda, Narcisa Aida Tanguila Narvaez, Bertha Antonia Yumbo Tanguila, Gloria Lucrecia Tanguila Grefa, Francisco Victor Tanguila Grefa, Rosa Teresa Chimbo Tanguila, Maria Clelia Reascos Revelo, Heleodoro Pataron Guaraca, Celia Irene Viveros Cusangua, Lorenzo Jose Alvarado Yumbo, Francisco Alvarado Yumbo, Jose Gabriel Revelo Llore, Luisa Delia Tanguila Narvaez, Jose Miguel Ipiales Chicaiza, Hugo Gerardo Camacho Naranjo, Maria Magdalena Rodriguez Barcenes, Elias Roberto Piyahuaje Payahuaje, Lourdes Beatriz Chimbo Tanguila, Octavio Ismael Cordova Huanca, Maria Hortencia Viveros Cusangua, Guillermo Vincente Payaguaje Lusitante,

Alfredo Donaldo Payaguaje Payaguaje and Delfin Leonidas Payaguaje Payaguaje Respondents and International Human Rights Program at the University of Toronto Faculty of Law, MiningWatch Canada, Canadian Centre for International Justice and Justice and Corporate Accountability Project Interveners Indexed as: Chevron Corp. v. Yaiguaje 2015 SCC 42 File No.: 35682. 2014: December 11; 2015: September 4.

Present: McLachlin C.J. and Abella, Rothstein, Cromwell, Karakatsanis, Wagner and Gascon JJ. on appeal from the court of appeal for ontario Private international law — Foreign judgments — Recognition — Enforcement — Foreign judgment creditor sought recognition and enforcement of foreign judgment in Ontario against U.S. foreign judgment debtor’s and Canadian seventh-level indirect subsidiary — Foreign judgment debtor served ex juris at U.S. head office — Subsidiary served in juris at place of business in Ontario — Whether a real and substantial connection must exist between defendant or dispute and Ontario for jurisdiction to be established — Whether Ontario courts have jurisdiction over foreign judgment debtor’s subsidiary when subsidiary is a third party to the judgment for which recognition and enforcement is sought.

The oil-rich Lago Agrio region of Ecuador has long attracted the exploration and extraction activities of global oil companies, including Texaco. As a result of those activities, the region is said to have suffered extensive environmental pollution that has disrupted the lives and jeopardized the futures of its residents. For over 20 years, the 47 respondents/plaintiffs, who represent approximately 30,000 indigenous Ecuadorian villagers, have been seeking legal accountability and financial and environmental reparation for harms they allegedly suffered due to Texaco’s former operations in the region.

Texaco has since merged with Chevron, a U.S. corporation. The Appellate Division of the Provincial Court of Justice of Sucumbíos affirmed an Ecuadorian trial judge’s award of US$8.6 billion in environmental damages and US$8.6 billion in punitive damages against Chevron. Ecuador’s Court of Cassation upheld the judgment except on the issue of punitive damages. In the end, the total amount owed was reduced to US$9.51 billion. Since the initial judgment, Chevron has fought the plaintiffs in the U.S. courts and has refused to acknowledge or pay the debt.

As Chevron does not hold any Ecuadorian assets, the plaintiffs commenced an action for recognition and enforcement of the Ecuadorian judgment in the Ontario Superior Court of Justice. It served Chevron at its head office in California, and served Chevron Canada, a seventh-level indirect subsidiary of Chevron, first at an extra-provincially registered office in British Columbia, and then at its place of business in Ontario. Inter alia , the plaintiffs sought the Canadian equivalent of the award resulting from the judgment of the Appellate Division of the Provincial Court of Justice of Sucumbíos.

Chevron and Chevron Canada each sought orders setting aside service ex juris of the amended statement of claim, declaring that the court had no jurisdiction to hear the action, and dismissing or permanently staying the action. The motion judge ruled in the plaintiffs’ favour with respect to jurisdiction. However, he exercised the court’s power to stay the proceeding on its own initiative pursuant to s. 106 of the Ontario Courts of Justice Act . The Court of Appeal held this was not an appropriate case in which to impose a discretionary stay under s. 106 .

On the jurisdictional issue, it held that, as the foreign court had a real and substantial connection with the subject matter of the dispute or with the defendant, an Ontario court has jurisdiction to determine whether the foreign judgment should be recognized and enforced in Ontario against Chevron. With respect to Chevron Canada, in view of its bricks-and-mortar business in Ontario and its significant relationship with Chevron, the Court of Appeal found that an Ontario court has jurisdiction to adjudicate a recognition and enforcement action that also named it as a defendant.

Held : The appeal should be dismissed. Canadian courts, like many others, have adopted a generous and liberal approach to the recognition and enforcement of foreign judgments. To recognize and enforce such a judgment, the only prerequisite is that the foreign court had a real and substantial connection with the litigants or with the subject matter of the dispute, or that the traditional bases of jurisdiction were satisfied. There is no need to demonstrate a real and substantial connection between the dispute or the defendant and the enforcing forum.

In actions to recognize and enforce foreign judgments within the limits of the province, it is the act of service on the basis of a foreign judgment that grants an Ontario court jurisdiction over the defendant. To conclude otherwise would undermine the important values of order and fairness that underlie all conflicts rules, and would be inconsistent with this Court’s statement that the doctrine of comity must be permitted to evolve concomitantly with international business relations, cross-border transactions, and mobility.

This Court has never required there to be a real and substantial connection between the defendant or the action and the enforcing court for jurisdiction to exist in recognition and enforcement proceedings. An unambiguous statement by this Court that a real and substantial connection is not necessary will have the benefit of providing a fixed, clear and predictable rule, allowing parties to predict with reasonable confidence whether a court will assume jurisdiction in a case with an international or interprovincial aspect and

will help to avert needless and wasteful jurisdictional inquiries. Two considerations of principle support the view that the real and substantial connection test should not be extended to anenforcing court in an action for recognition and enforcement. First, the crucial difference between an action at first instance and an actionfor recognition and enforcement is that, in the latter case, the only purpose of the action is to allow a pre-existing obligation to befulfilled.

As the enforcing court is not creating a new substantive obligation, there can be no concern that the parties are situatedelsewhere, or that the facts underlying the dispute are properly addressed in another court. The only important element is the foreignjudgment and the legal obligation it has created. Furthermore, enforcement is limited to measures that can be taken only within theconfines of the jurisdiction and in accordance with its rules, and the enforcing court’s judgment has no coercive force outside itsjurisdiction. Similarly, enforcement is limited to seizable assets found within its territory.

As a result, any potential constitutionalconcerns relating to conflict of laws simply do not arise in recognition and enforcement cases: since the obligation created by a foreignjudgment is universal, each jurisdiction has an equal interest in the obligation resulting from the foreign judgment, and no concern aboutterritorial overreach could emerge. Beyond this, it must be remembered that the notion of comity has consistently been found to underlie Canadian recognitionand enforcement law.

The need to acknowledge and show respect for the legal action of other states has consistently remained one ofcomity’s core components, and militates in favour of recognition and enforcement. Legitimate judicial acts should be respected andenforced, not sidetracked or ignored. The goal of modern conflicts systems rests on the principle of comity, which calls for thepromotion of order and fairness, an attitude of respect and deference to other states, and a degree of stability and predictability in order tofacilitate reciprocity.

This is true of all areas of private international law, including the recognition and enforcement of foreignjudgments. In recognition and enforcement proceedings, order and fairness are protected by ensuring that a real and substantialconnection existed between the foreign court and the underlying dispute. If such a connection did not exist, or if the defendant was notpresent in or did not attorn to the foreign jurisdiction, the resulting judgment will not be recognized and enforced in Canada.

Nounfairness results to judgment debtors from having to defend against recognition and enforcement proceedings — through their ownbehaviour and legal noncompliance, they have made themselves the subject of outstanding obligations, so they may be called upon toanswer for their debts in various jurisdictions. They are also provided with the opportunity to convince the enforcing court that there isanother reason why recognition and enforcement should not be granted.

Requiring a defendant to be present or to have assets in theenforcing jurisdiction would only undermine order and fairness: presence will frequently be absent given the very nature of theproceeding at issue, and requiring assets in the enforcing jurisdiction when recognition and enforcement proceedings are instituted wouldrisk depriving creditors of access to funds that might eventually enter the jurisdiction.

In today’s globalized world and electronic age, torequire that a judgment creditor wait until the foreign debtor is present or has assets in the province before a court can find that it hasjurisdiction in recognition and enforcement proceedings would be to turn a blind eye to current economic reality.

Finding that there is no requirement of a real and substantial connection between the defendant or the action and theenforcing court in an action for recognition and enforcement is also supported by the choices made by the Ontario legislature, all othercommon law provinces and territories, Quebec, other international common law jurisdictions and most Canadian conflict of lawsscholars. In this case, jurisdiction is established with respect to Chevron.

It attorned to the jurisdiction of the Ecuadorian courts, it wasserved ex juris at its head office, and the amended statement of claim alleged that it was a foreign debtor pursuant to a judgment of anEcuadorian court. While this judgment has since been varied by a higher court, this occurred after the amended statement of claim hadbeen filed; even if the total amount owed was reduced, the judgment remains largely intact. The plaintiffs have sufficiently pleaded theOntario courts’ jurisdiction over Chevron.

The question of whether jurisdiction exists over Chevron Canada should begin and end with traditional, presence-basedjurisdiction. Where jurisdiction stems from the defendant’s presence in the jurisdiction, there is no need to consider whether a real andsubstantial connection exists. To establish traditional, presence-based jurisdiction over an out-of-province corporate defendant, it must beshown that the defendant was carrying on business in the forum at the time of the action.

This is a question of fact: the court must inquireinto whether the company has some direct or indirect presence in the state asserting jurisdiction, accompanied by a degree of businessactivity which is sustained for a period of time. Here, the motion judge’s factual findings have not been contested. They are sufficient toestablish presence-based jurisdiction. Chevron Canada has a physical office in Ontario, where it was served. Its business activities at thisoffice are sustained; it has representatives who provide services to customers in the province.

Canadian courts have found thatjurisdiction exists in such circumstances. The motion judge’s analysis was correct, and the Ontario Court of Appeal had no need to gobeyond these considerations to find jurisdiction. The establishment of jurisdiction does not mean that the plaintiffs will necessarily succeed in having the Ecuadorianjudgment recognized and enforced. A finding of jurisdiction does nothing more than afford the plaintiffs the opportunity to seekrecognition and enforcement of the Ecuadorian judgment.

Once past the jurisdictional stage, Chevron and Chevron Canada can use theavailable procedural tools to try to dispose of the plaintiffs’ allegations. This possibility is foreign to and remote from the questions thatmust be resolved on this appeal. Further, the conclusion that the Ontario courts have jurisdiction in this case should not be understood toprejudice future arguments with respect to the distinct corporate personalities of Chevron and Chevron Canada or whether ChevronCanada’s shares or assets will be available to satisfy Chevron’s debt. Cases Cited Applied: Morguard Investments Ltd. v.

De Savoye, (SCC), [1990] 3 S.C.R. 1077; Beals v. Saldanha, 2003SCC 72, [2003] 3 S.C.R. 416; distinguished: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572; referred to: Aguindav. Texaco, Inc., 303 F.3d 470 (2002); Chevron Corp. v. Donziger, 768 F.Supp.2d 581 (2011); Chevron Corp. v. Naranjo, 667 F.3d 232(2012); Chevron Corp. v. Donziger, 974 F.Supp.2d 362 (2014); Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612;Hunt v. T&N plc, (SCC), [1993] 4 S.C.R. 289; Hilton v. Guyot, 159 U.S. 113 (1895); Spencer v. The Queen, (SCC), [1985] 2 S.C.R. 278; Tolofson v.

Jensen, (SCC), [1994] 3 S.C.R. 1022; BNP Paribas (Canada) v. Mécs(2002), (ON SC), 60 O.R. (3d) 205; Tasarruf Mevduati Sigorta Fonu v. Demirel, [2007] EWCA Civ 799, [2007] 1W.L.R. 2508; Yukos Capital S.A.R.L. v. OAO Tomskneft VNK, [2014] IEHC 115; Lenchyshyn v. Pelko Electric, Inc., 723 N.Y.S.2d 285

(2001); Abu Dhabi Commercial Bank PJSC v. Saad Trading, Contracting and Financial Services Co., 986 N.Y.S.2d 454 (2014);Haaksman v. Diamond Offshore (Bermuda), Ltd., 260 S.W.3d 476 (2008); Pure Fishing, Inc. v. Silver Star Co., 202 F.Supp.2d 905(2002); Electrolines, Inc. v. Prudential Assurance Co., 677 N.W.2d 874 (2004); Base Metal Trading, Ltd. v. OJSC “NovokuznetskyAluminum Factory”, 283 F.3d 208 (2002), cert. denied, 537 U.S. 822 (2002); CSA8-Garden Village LLC v. Dewar, 2013 ONSC 6229,369 D.L.R. (4th) 125; Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549; Salomon v.

Salomon & Co., [1897] A.C. 22;Ontario v. Rothman’s Inc., 2013 ONCA 353, 115 O.R. (3d) 561; Muscutt v. Courcelles (2002), (ON CA), 60 O.R.(3d) 20; Wilson v. Hull (1995), 1995 ABCA 374 , 174 A.R. 81; Ingersoll Packing Co. v. New York Central and Hudson RiverR.R. Co. (1918), 42 O.L.R. 330; Adams v. Cape Industries Plc., [1990] 1 Ch. 433; Incorporated Broadcasters Ltd. v. Canwest GlobalCommunications Corp. (2003), (ON CA), 63 O.R. (3d) 431; Prince v. ACE Aviation Holdings Inc., 2013 ONSC2906, 115 O.R. (3d) 721, aff’d 2014 ONCA 285, 120 O.R. (3d) 140; Abdula v.

Canadian Solar Inc., 2011 ONSC 5105, 92 B.L.R. (4th)324, aff’d 2012 ONCA 211, 110 O.R. (3d) 256; Charron v. Banque provinciale du Canada, [1936] O.W.N. 315; Patterson v. EMTechnologies, Inc., 2013 ONSC 5849; BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, [2008] 3 S.C.R. 560. Statutes and Regulations Cited

Canada Business Corporations Act, R.S.C. 1985, c. C-44. Civil Code of Québec, art. 3155. Courts of Justice Act, R.S.O. 1990, c. C.43, s. 106. International Commercial Arbitration Act, R.S.O. 1990, c. I.9, Sch., arts. 35(1), 36(1). Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5. Reciprocal Enforcement of Judgments (U.K.) Act, R.S.O. 1990, c. R.6. Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 16.02(1)(c), 17.02, 20, 21. Authors Cited Black, Vaughan. “Enforcement of Judgments and Judicial Jurisdiction in Canada” (1989), 9 Oxford J. Legal Stud. 547. Black, Vaughan, Stephen G. A.

Pitel and Michael Sobkin. Statutory Jurisdiction: An Analysis of the Court Jurisdiction and ProceedingsTransfer Act. Toronto: Carswell, 2012. Blom, Joost. “New Ground Rules for Jurisdictional Disputes: The Van Breda Quartet” (2012), 53 Can. Bus. L.J. 1. Brand, Ronald A. “Federal Judicial Center International Litigation Guide: Recognition and Enforcement of Foreign Judgments” (2013),74 U. Pitt. L. Rev. 491. Briggs, Adrian. The Conflict of Laws, 3rd ed. Oxford: Oxford University Press, 2013. Castel, J.-G. Introduction to Conflict of Laws, 4th ed. Markham, Ont.: Butterworths, 2002.

Dicey and Morris on the Conflict of Laws, vol. 1, 13th ed. Under the general editorship of Lawrence Collins. London: Sweet & Maxwell,2000. Monestier, Tanya J. “A ‘Real and Substantial’ Mess: The Law of Jurisdiction in Canada” (2007), 33 Queen’s L.J. 179. Monestier, Tanya J. “Jurisdiction and the Enforcement of Foreign Judgments” (2013), 42 Advocates’ Q. 107. Monestier, Tanya J. “(Still) a ‘Real and Substantial’ Mess: The Law of Jurisdiction in Canada” (2013), 36 Fordham Int’l L.J. 396. Perell, Paul M., and John W. Morden. The Law of Civil Procedure in Ontario, 2nd ed. Markham, Ont.: LexisNexis, 2014.

Pitel, Stephen G. A., and Cheryl D. Dusten. “Lost in Transition: Answering the Questions Raised by the Supreme Court of Canada’sNew Approach to Jurisdiction” (2006), 85 Can. Bar Rev. 61. Pitel, Stephen G. A., and Nicholas S. Rafferty. Conflict of Laws. Toronto: Irwin Law, 2010. Uniform Law Conference of Canada. Court Jurisdiction and Proceedings Transfer Act (online: http://www.ulcc.ca/en/uniform-acts-new-order/current-uniform-acts/ 739-jurisdiction/civil-jurisdiction/1730-court-jurisdiction-proceedings-transfer-act). Walker, Janet. Castel & Walker: Canadian Conflict of Laws, 6th ed.

Markham, Ont.: LexisNexis, 2005 (loose-leaf updated June 2015,release 50). Watson, Garry D., and Frank Au. “Constitutional Limits on Service Ex Juris: Unanswered Questions from Morguard” (2000), 23Advocates’ Q. 167. APPEAL from a judgment of the Ontario Court of Appeal (MacPherson, Gillese and Hourigan JJ.A.), 2013 ONCA 758, 118O.R. (3d) 1, 313 O.A.C. 285, 370 D.L.R. (4th) 132, 52 C.P.C. (7th) 229, 15 B.L.R. (5th) 285, [2013] O.J. No. 5719 (QL), 2013CarswellOnt 17574 (WL Can.), setting aside a decision of Brown J., 2013 ONSC 2527, 361 D.L.R. (4th) 489, 15 B.L.R. (5th) 226,

[2013] O.J. No. 1955 (QL), 2013 CarswellOnt 5729 (WL Can.). Appeal dismissed. Clarke Hunter , Q.C. , Anne Kirker , Q.C. , and Robert Frank , for the appellant Chevron Corporation. Benjamin Zarnett , Suzy Kauffman and Peter Kolla , for the appellant Chevron Canada Limited. Alan J. Lenczner , Q.C. , Brendan F. Morrison and Chris J. Hutchison , for the respondents. Murray Klippenstein , Renu Mandhane and W. Cory Wanless , for the interveners the International Human Rights Program at the University of Toronto Faculty of Law, MiningWatch Canada and the Canadian Centre for International Justice. A.

Dimitri Lascaris and James Yap , for the intervener the Justice and Corporate Accountability Project. The judgment of the Court was delivered by Gascon J. — I. Overview [ 1 ] In a world in which businesses, assets, and people cross borders with ease, courts are increasingly called upon to recognize and enforce judgments from other jurisdictions. Sometimes, successful recognition and enforcement in another forum is the only means by which a foreign judgment creditor can obtain its due.

Normally, a judgment creditor will choose to commence recognition and enforcement proceedings in a forum where the judgment debtor has assets. In this case, however, the Court is asked to determine whether the Ontario courts have jurisdiction to recognize and enforce an Ecuadorian judgment where the foreign judgment debtor, Chevron Corporation (“Chevron”), claims to have no connection with the province, whether through assets or otherwise.

The Court is also asked to determine whether the Ontario courts have jurisdiction over a Canadian subsidiary of Chevron, Chevron Canada Limited (“Chevron Canada”), a stranger to the foreign judgment for which recognition and enforcement is being sought. [ 2 ] The courts below found that jurisdiction existed over Chevron.

They held that the only connection that must be proven for recognition and enforcement to proceed is one between the foreign court and the original action on the merits; there is no preliminary need to prove a connection with Ontario for jurisdiction to exist in recognition and enforcement proceedings.

They also found there to be an independent jurisdictional basis for proceeding against Chevron Canada due to the place of business it operates in the province, and at which it had been duly served. [ 3 ] I agree with the outcomes reached by the courts below with respect to both Chevron and Chevron Canada and I would dismiss the appeal. In an action to recognize and enforce a foreign judgment where the foreign court validly assumed jurisdiction, there is no need to prove that a real and substantial connection exists between the enforcing forum and either the judgment debtor or the dispute.

It makes little sense to compel such a connection when, owing to the nature of the action itself, it will frequently be lacking. Nor is it necessary, in order for the action to proceed, that the foreign debtor contemporaneously possess assets in the enforcing forum. Jurisdiction to recognize and enforce a foreign judgment within Ontario exists by virtue of the debtor being served on the basis of the outstanding debt resulting from the judgment. This is the case for Chevron.

Jurisdiction also exists here with respect to Chevron Canada because it was validly served at a place of business it operates in the province. On the traditional jurisdictional grounds, this is sufficient to find jurisdiction. II. Backgrounds and Facts [ 4 ] The dispute underlying the appeal originated in the Lago Agrio region of Ecuador. The oil-rich area has long attracted the exploration and extraction activities of global oil companies, including Texaco, Inc. (“Texaco”).

As a result of those activities, the region is said to have suffered extensive environmental pollution that has, in turn, disrupted the lives and jeopardized the futures of its residents. The 47 respondents (“plaintiffs”) represent approximately 30,000 indigenous Ecuadorian villagers. For over 20 years, they have been seeking legal accountability as well as financial and environmental reparation for harms they allegedly have suffered due to Texaco’s former operations in the region.

Texaco has since merged with Chevron. [ 5 ] In 1993, the plaintiffs filed suit against Texaco in the United States District Court for the Southern District of New York. In 2001, after lengthy interim proceedings, the District Court dismissed their suit on the grounds of international comity and forum non conveniens . The following year, the United States Court of Appeals for the Second Circuit upheld that judgment, relying in part on a commitment by Texaco to submit to the jurisdiction of the Ecuadorian courts should its motion to dismiss succeed: Aguinda v.

Texaco, Inc. , 303 F.3d 470 (2d Cir. 2002). [ 6 ] In 2003, the plaintiffs filed suit against Chevron in the Provincial Court of Justice of Sucumbíos. Several years of litigation ensued. In 2011, Judge Zambrano ruled in the plaintiffs’ favour, and ordered Chevron to pay US$8.6 billion in environmental damages, as well as US$8.6 billion in punitive damages that were to be awarded unless Chevron apologized within 14 days of the judgment. As Chevron did not apologize, the punitive damages award remained intact.

In January 2012, the Appellate Division of the Provincial Court of Justice of Sucumbíos affirmed the trial judgment. In November 2013, Ecuador’s Court of Cassation upheld the Appellate Division’s judgment, except on the issue of punitive damages. In the end, the total amount owed was reduced to US$9.51 billion. [ 7 ] Meanwhile, Chevron instituted further U.S. proceedings against the plaintiffs’ American lawyer, Steven Donziger, and two of his Ecuadorian clients, seeking equitable relief. Chevron alleged that Mr.

Donziger and his team had corrupted the Ecuadorian proceedings by, among other things, ghost-writing the trial judgment and paying Judge Zambrano US$500,000 to release it as his own. In 2011, Judge Kaplan of the United States District Court for the Southern District of New York granted preliminary relief in the form of a global anti-enforcement injunction with respect to the Ecuadorian judgment: Chevron Corp. v. Donziger , 768 F.Supp.2d 581 (S.D.N.Y. 2011) .

The United States Court of Appeals for the Second Circuit overturned this injunction in 2012, stressing that “[t]he [plaintiffs] hold a judgment from an Ecuadorian court. They may seek to enforce that judgment in any country in the world where

Chevron has assets”: Chevron Corp. v. Naranjo, 667 F.3d 232 (2d Cir. 2012), at pp. 245-46. In 2014, Judge Kaplan of the District Courtheld that the Ecuadorian judgment had resulted from fraud committed by Mr. Donziger and others on the Ecuadorian courts: ChevronCorp. v. Donziger, 974 F.Supp.2d 362 (S.D.N.Y. 2014). That decision and the underlying allegations of fraud are not before this Court. [8] Since the initial judgment, Chevron has refused to acknowledge or pay the debt that the trial court said it owed, andit does not hold any Ecuadorian assets.

Faced with this situation, the plaintiffs have turned to the Canadian courts for assistance inenforcing the Ecuadorian judgment, and obtaining their financial due. On May 30, 2012, after the Appellate Division’s decision but priorto the release of the 2013 judgment of the Court of Cassation, they commenced an action for recognition and enforcement of theEcuadorian judgment against Chevron, Chevron Canada and Chevron Canada Finance Limited in the Ontario Superior Court of Justice.

The action against the latter has since been discontinued. [9] Chevron, a U.S. corporation incorporated in Delaware, was served at its head office in San Ramon, California. Chevron Canada, a Canadian corporation governed by the

Canada Business Corporations Act, R.S.C. 1985, c. C-44, with its head officein Alberta, is a seventh-level indirect subsidiary of Chevron, which has 100 percent ownership of every company in the chain betweenitself and Chevron Canada. The plaintiffs initially served Chevron Canada with their amended statement of claim at an extra-provincially registered office in British Columbia. Later, they served the company at a place of business it operates in Mississauga,Ontario. [10] In serving Chevron in San Ramon, the plaintiffs relied upon rule 17.02(

m) of Ontario’s Rules of Civil Procedure,R.R.O. 1990, Reg. 194 (“Rules”), which provides that service may be effected outside of Ontario without leave where the proceedingconsists of a claim “on a judgment of a court outside Ontario”. In serving Chevron Canada at its Mississauga office, the plaintiffs reliedupon rule 16.02(1)(c), which requires that personal service be made on a corporation “by leaving a copy of the document . . . with aperson at any place of business of the corporation who appears to be in control or management of the place of business”. [11] In their amended statement of claim, the plaintiffs sought: (

a) the Canadian equivalent of the award ofUS$18,256,718,000 resulting from the 2012 judgment of the Appellate Division of the Provincial Court of Justice of Sucumbíos; (

b) theCanadian equivalent of costs to be determined by the Ecuadorian court; (

c) a declaration that the shares of Chevron Canada are availableto satisfy the judgment of the Ontario court; (

d) the appointment of an equitable receiver over the shares and assets of Chevron Canada;(

e) prejudgment interest from January 3, 2012; and (

f) all costs of the proceedings on a substantial indemnity basis, plus all applicabletaxes. In response, the appellants each brought a motion in which they sought substantially the same relief: (1) an order setting asideservice ex juris of the amended statement of claim; and (2) an order declaring that the court had no jurisdiction to hear the action, anddismissing or permanently staying it. III. Judicial History A. Ontario Superior Court of Justice (Commercial List) (Brown J.), 2013 ONSC 2527, 361 D.L.R. (4th) 489

(1) Order Setting Aside Service Ex Juris [12] The motion judge was asked to determine the prerequisites for establishing that an Ontario court has jurisdiction inan action to recognize and enforce a foreign judgment. Chevron contended that the “real and substantial connection” test for establishingjurisdiction articulated by this Court in Club Resorts Ltd. v.

Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, applies not only to thequestion whether a court can assume jurisdiction over a dispute in order to decide its merits, but also to whether an enforcing court hasjurisdiction in an action to recognize and enforce a foreign judgment. The plaintiffs replied that the “real and substantial connection” testfor jurisdiction does not apply to the enforcing court. Rather, in an action for recognition and enforcement, it need only be establishedthat the foreign court had a real and substantial connection with the dispute’s parties or with its subject matter.

The motion judge ruled inthe plaintiffs’ favour, dismissing Chevron’s motion. He offered five reasons for his conclusion. [13] First, in his view, this Court’s leading cases on recognition and enforcement ― Morguard Investments Ltd. v. DeSavoye, (SCC), [1990] 3 S.C.R. 1077, and Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416 ― contain nosuggestion that a real and substantial connection between the foreign judgment debtor and Ontario is needed. Second, he found that thereis nothing in Van Breda to suggest that it altered the principles laid down in Morguard and Beals. Third, requiring that rule 17.02(

m) beread “within the (un-stated) context of the Ontario court otherwise enjoying some real and substantial connection to the defendant wouldrender the sub-rule meaningless” because the Ontario court will, of course, have no connection with the subject matter of the judgment,given that “it is a foreign judgment which by its very nature has no connection with Ontario”: para. 80. Nor will there be an in personamconnection between the defendant and Ontario, as “the sub-rule specifically contemplates that a non-Ontario resident will be thedefendant in the action”: ibid.

Fourth, the judge held that there may be legitimate reasons (for instance, the practical reality that assetscan exit a jurisdiction quickly) for seeking the recognition and enforcement of a foreign judgment against a non-resident debtor who hasno assets in Ontario. To insist that the debtor have assets in the jurisdiction before a judgment creditor can seek recognition andenforcement could harm the creditor’s ability to recover the debt. Fifth, the motion judge considered two analogous Ontario statutes ―the Reciprocal Enforcement of Judgments (U.K.) Act, R.S.O. 1990, c.

R.6, and the International Commercial Arbitration Act, R.S.O.1990, c. I.9 ― and found that neither of these legislative schemes establishes a requirement that the defendant be located or possessassets in Ontario before a creditor can register a foreign judgment or arbitral award.

In “an age of global commerce”, he added, it wouldbe misguided to have a more restrictive common law approach than a statutory one: para. 82. [14] The motion judge also found that jurisdiction existed over Chevron Canada, which had initially contended thatbecause it was not a judgment debtor, there was no basis upon which to serve it ex juris in British Columbia. The judge observed,however, that the situation had changed since Chevron Canada had brought its motion: the plaintiffs had served the corporation at a“bricks and mortar” office it operates in Mississauga, Ontario (para. 87).

This constituted a “place of business” within the meaning ofrule 16.02(1)(c), and service at that location was sufficient to establish jurisdiction.

(2) Order of a Stay Under

Section 106 of the Courts of Justice Act [15] In spite of these conclusions, the motion judge found that this was an appropriate case in which to exercise the

court’s power to stay a proceeding “on its own initiative” pursuant to s. 106 of the Courts of Justice Act , R.S.O. 1990, c. C.43. He so held for several reasons. First, Chevron does not own, has never owned, and has no intention of owning assets in Ontario. Second, Chevron conducts no business in Ontario. Third, there is no basis for asserting that Chevron Canada’s assets are Chevron’s assets for the purposes of satisfying the Ecuadorian judgment. Chevron does not own Chevron Canada’s shares. Nor is there a legal basis for piercing Chevron Canada’s corporate veil.

In the judge’s view, even though “[i]mportant considerations of international comity accompany any request for the recognition of a judgment rendered by a foreign court . . . [t]he evidence [in this case] disclosed that there is nothing in Ontario to fight over”, and thus no reason to allow the claim to proceed any further: para. 111. B. Ontario Court of Appeal (MacPherson, Gillese and Hourigan JJ.A.), 2013 ONCA 758 , 118 O.R. (3d) 1 [ 16 ] The plaintiffs appealed the stay entered by the motion judge. Chevron and Chevron Canada cross-appealed his conclusion that the Ontario courts have jurisdiction.

(1) Entering of the Stay [ 17 ] To maintain consistency with their jurisdictional challenge, Chevron and Chevron Canada made no submissions before the Ontario Court of Appeal in support of the stay that had been granted. They made no submissions on this point before this Court either. This issue is therefore not before us. [ 18 ] In this regard, I would simply note that the Court of Appeal rejected the view that this was an appropriate case in which to impose a discretionary stay under s. 106 of the Courts of Justice Act .

MacPherson J.A., writing for the court, emphasized that Chevron and Chevron Canada ― both “sophisticated parties with excellent legal representation” ― had decided not to attorn to the jurisdiction of the Ontario courts: para. 45. They referenced s. 106 in their submissions only insofar as it potentially supported a stay on the basis of lack of jurisdiction, not on the basis on which it had ultimately been granted. The stay was entirely the initiative of the motion judge.

According to the Court of Appeal, a s. 106 stay should only be granted in rare circumstances, and the bar to granting it should be raised even higher when it is not requested by the parties. In fact, the s. 106 stay in this case constituted a “disguised, unrequested and premature Rule 20 and/or Rule 21 motion”: para. 57. In MacPherson J.A.’s view, the motion judge had effectively imported a forum non conveniens motion into his reasoning on the stay, even though no such motion had been before him.

The issues that the motion judge had addressed deserved to be fully canvassed on the basis of a complete record and full legal argument. [ 19 ] I note as well that the Court of Appeal found that although the motion judge’s analysis with respect to jurisdiction relied on the notion of comity, he underplayed comity’s importance in the reasons he gave in support of the stay. The Court of Appeal disagreed that allowing the case to be heard on the merits would constitute a mere “academic exercise”: para. 70.

In its view, in light of Chevron’s considerable efforts to stall proceedings up to that point, the plaintiffs “[did] not deserve to have their entire case fail on the basis of an argument against their position that was not even made, and to which they did not have an opportunity to respond”: ibid . It found that while the plaintiffs may not ultimately succeed on the merits, or in collecting from the judgment debtor, this was not relevant to a determination of whether to grant a discretionary stay at this stage of the proceedings.

For the Court of Appeal, “[t]his case crie[d] out for assistance, not unsolicited and premature barriers”: para. 72.

(2) Jurisdiction to Determine Whether the Ecuadorian Judgment Should Be Recognized and Enforced [ 20 ] On the jurisdictional issue, the Court of Appeal agreed with the motion judge’s analysis. It found this Court’s judgment in Beals to be “crystal clear” about how the real and substantial connection test is to be applied in an action for recognition and enforcement of a foreign judgment: para. 29. The sole question is whether the foreign court properly assumed jurisdiction, in the sense that it had a real and substantial connection with the subject matter of the dispute or with the defendant.

In other words, there need not be an inquiry into the relationship between “the legal dispute in the foreign country and the domestic Canadian court being asked to recognize and enforce the foreign judgment”: para. 30. [ 21 ] MacPherson J.A. found that this Court’s decision in Van Breda did not alter this analysis. In his view, Van Breda applies to actions at first instance, not to actions for recognition and enforcement. In a first instance case, “an Ontario court exceeds its constitutional authority when it assumes jurisdiction of a case where there is no real and substantial connection to Ontario”: para. 32.

Assuming jurisdiction in such a case “offends the principle of comity because one or more other jurisdictions have a real and substantial connection to the subject matter of the litigation and Ontario does not”: ibid . No constitutional issues or comity concerns arise when merely recognizing and enforcing a foreign judgment, “because the Ontario court does not purport to intrude on matters that are properly within the jurisdiction of the foreign court”: para. 33.

In the result, MacPherson J.A. held that “it is clear that the Ecuadorian judgment for US$9.51 billion against Chevron satisfied the requirement of rule 17.02 (m)”: para. 35. Thus, “an Ontario court has jurisdiction to determine whether the Ecuadorian judgment against Chevron may be recognized and enforced in Ontario”: ibid . [ 22 ] With respect to Chevron Canada, the Court of Appeal held that the motion judge had been “correct to note Chevron Canada’s bricks-and-mortar business in Ontario”: para. 38.

In addition, the court found that “Chevron Canada’s significant relationship with Chevron” was also relevant to whether jurisdiction was legitimately found: ibid . An Ontario court thus has jurisdiction to adjudicate a recognition and enforcement action against Chevron that also names Chevron Canada as a defendant. IV. Issues [ 23 ] The appeal raises two issues: (

a) In an action to recognize and enforce a foreign judgment, must there be a real and substantial connection between the defendant or the dispute and Ontario for jurisdiction to be established? (

b) Do the Ontario courts have jurisdiction over Chevron Canada, a third party to the judgment for which recognition and enforcement is sought?

V. Analysis A. Establishing Jurisdiction Over Foreign Debtors in Actions to Recognize and Enforce Foreign Judgments [ 24 ] Chevron submits that before proceeding with an action to recognize and enforce a foreign judgment, an Ontario enforcing court must follow a two-step process. First, it must determine its own jurisdiction by applying the real and substantial connection test articulated by this Court in Van Breda . For Chevron, this test applies to actions to recognize and enforce foreign judgments just as it does to actions at first instance.

Chevron suggests that one way ― and in many cases the only way ― in which this first component can be satisfied is if the defendant has assets in Ontario, or if there is a reasonable prospect of his or her having assets in Ontario in the future. Second, if jurisdiction is found, then the enforcing court should proceed to assess whether the foreign court appropriately assumed jurisdiction.

Chevron does not dispute that this second component is satisfied here: a real and substantial connection undoubtedly existed between the subject matter of the litigation, Chevron and the Ecuadorian court that rendered the foreign judgment. [ 25 ] In support of its position, Chevron relies on a passage from this Court’s decision in Pro Swing Inc. v.

Elta Golf Inc. , 2006 SCC 52 , [2006] 2 S.C.R. 612, at para. 28 : “Under the traditional rule [that only monetary judgments were enforceable], once the jurisdiction of the enforcing court is established , the petitioner must show that he or she meets the conditions for having the judgment recognized and enforced” (Chevron’s factum, at para. 52 (emphasis added by Chevron)).

It contends that the requirement of a preliminary finding of jurisdiction did not need to be addressed in the Court’s previous leading cases on recognition and enforcement ― Morguard and Beals ― as in each of those cases, the judgment debtor was resident in the province. [ 26 ] Chevron further argues that this position is consistent with Van Breda . There, the Court emphasized that pursuant to the Constitution, Canadian courts can only adjudicate disputes where doing so constitutes a legitimate exercise of state power: para. 31.

Chevron suggests that in actions to recognize and enforce foreign judgments, this constitutional legitimacy must still exist. Ontario courts risk jurisdictional overreach if they assume jurisdiction in cases like this one, in which the province has no interest. Moreover, assuming jurisdiction in such a case risks undermining, not furthering, the notion of comity.

The rules for service ex juris create mere presumptions of jurisdiction that are “rebuttable if there is no real and substantial connection with the province”: Chevron’s factum, at para. 57. [ 27 ] I agree with the Ontario Court of Appeal and the motion judge that the approach favoured by Chevron is sound neither in law nor in policy. Canadian courts, like many others, have adopted a generous and liberal approach to the recognition and enforcement of foreign judgments.

To recognize and enforce such a judgment, the only prerequisite is that the foreign court had a real and substantial connection with the litigants or with the subject matter of the dispute, or that the traditional bases of jurisdiction were satisfied. It is true that 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 the existence of assets alone or on another basis.

In actions to recognize and enforce foreign judgments within the limits of the province, it is the act of service on the basis of a foreign judgment that grants an Ontario court jurisdiction over the defendant. I arrive at this conclusion for several reasons. First, this Court has rightly never imposed a requirement to prove a real and substantial connection between the defendant or the dispute and the province in actions to recognize and enforce foreign judgments. Second, the distinct principles that underlie actions for recognition and enforcement as opposed to actions at first instance support this position.

Third, the experiences of other jurisdictions, convincing academic commentary, and the fact that comparable statutory provisions exist in provincial legislation reinforce this approach. Finally, practical considerations militate against adopting Chevron’s submission.

(1) Jurisprudential Guidance Prior to Van Breda [ 28 ] Contrary to Chevron’s contention, this Court has never required there to be a real and substantial connection between the defendant or the action and the enforcing court for jurisdiction to exist in recognition and enforcement proceedings. [ 29 ] This Court’s modern judgments on recognition and enforcement begin with the 1990 decision in Morguard . There, the Court expanded the traditionally limited bases upon which foreign judgments could be recognized and enforced.

Before Morguard , a foreign judgment would be recognized and enforced only if the defendant in the original action had been present in the foreign jurisdiction, or had consented to the court’s jurisdiction: S. G. A. Pitel and N. S. Rafferty, Conflict of Laws (2010), at p. 53; Morguard , at p. 1092. These traditional bases for recognition and enforcement attracted criticism as being unduly restrictive, particularly as between sister provinces: see, e.g., V. Black, “Enforcement of Judgments and Judicial Jurisdiction in Canada” (1989), 9 Oxford J.

Legal Stud. 547. [ 30 ] In Morguard , La Forest J., writing for the Court, held that the judgments of another province could and should also be recognized and enforced where the other province’s court assumed jurisdiction on the basis of a real and substantial connection between the action and that province: pp. 1102 and 1108. In his view, the traditional grounds for recognition and enforcement had been retained based on a misguided notion of comity, unsuited to “the need in modern times to facilitate the flow of wealth, skills and people across state lines in a fair and orderly manner”: p. 1096.

Moreover, the traditional recognition and enforcement rules were tailored to circumstances that had existed at a time when it would have been difficult for the defendant to defend “an action initiated in a far corner of the world in the then state of travel and communications”: p. 1097.

The need to revisit the traditional rules was particularly acute in a federal state like Canada, to which “considerations underlying the rules of comity apply with much greater force”: p. 1098. [ 31 ] In arriving at his conclusions, La Forest J.’s analysis focused entirely on whether the court of the other province or territory had “properly, or appropriately, exercised jurisdiction in the action”: p. 1102. He intimated no need to interrogate the enforcing court’s jurisdiction, either in his discussion of the law or in its application to the facts of the case.

Instead, once a real and substantial connection between the original court and the action is demonstrated, and it is clear that the original court had jurisdiction, the resulting judgment “should be recognized and be enforceable” in the other provinces: p. 1108. [ 32 ] This Court revisited the prerequisites to recognition and enforcement in 2003 in Beals . It held that the real and substantial connection test should also apply to the money judgments of other countries’ courts. In reasons written by Major J., the

majority of the Court found that the principles of order, fairness, and comity that underlay the decision in Morguard , while originally cast in the interprovincial context, were equally compelling internationally: paras. 25-27. According to Major J., “[i]nternational comity and the prevalence of international cross-border transactions and movement call for a modernization of private international law”: para. 28.

Where a real and substantial connection existed between the foreign court and the action’s subject matter or its defendants, the foreign judgment should be recognized and enforced: para. 29. [ 33 ] Here again, the Court did not articulate or imply a need to inquire into the enforcing court’s jurisdiction; the focus remained squarely on the foreign jurisdiction.

In Major J.’s view, the following conditions must be met before a domestic court will enforce a judgment from a foreign jurisdiction: The enforcing court, in this case Ontario, must determine whether the foreign court had a real and substantial connection to the action or the parties, at least to the level established in Morguard , supra . A real and substantial connection is the overriding factor in the determination of jurisdiction. . . . If a foreign court did not properly take jurisdiction, its judgment will not be enforced. . . . . . .

Once the “real and substantial connection” test is found to apply to a foreign judgment, the court should then examine the scope of the defences available to a domestic defendant in contesting the recognition of such a judgment. ( Beals , at paras. 37-39 ) [ 34 ] Thus, in the recognition and enforcement context, the real and substantial connection test operates simply to ensure that the foreign court from which the judgment originated properly assumed jurisdiction over the dispute.

Once this is demonstrated, the defendant has an opportunity to prove that one of the defences to recognition and enforcement should apply. No mention is made of any need to prove a connection between the enforcing jurisdiction and the action. In the end, the test articulated for recognition and enforcement in Morguard and Beals is “seemingly straightforward”: T. J.

Monestier, “Jurisdiction and the Enforcement of Foreign Judgments” (2013), 42 Advocates’ Q. 107, at p. 110. [ 35 ] Three years later, in Pro Swing , the Court once more extended the scope of Canadian recognition and enforcement law, this time in relation to non-monetary foreign judgments. Traditionally, to be recognizable and enforceable, a foreign judgment had to be “(

a) for a debt, or definite sum of money” and “(

b) final and conclusive”: para. 10, quoting Dicey and Morris on the Conflict of Laws (13th ed. 2000), vol. 1, Rule 35, at pp. 474-75. In Pro Swing , the Court held that non-monetary foreign judgments should also be capable of being recognized and enforced in Canada. In its view, “the conditions for recognition and enforcement can be expressed generally as follows: the judgment must have been rendered by a court of competent jurisdiction and must be final, and it must be of a nature that the principle of comity requires the domestic court to enforce”: para. 31.

Chevron contends that it was in the course of this judgment that the Court clearly expressed what had been implicit in Morguard and Beals : the need to assess the Canadian forum’s jurisdiction before recognizing and enforcing the foreign judgment.

In this regard, Chevron points to para. 28 of the majority’s reasons, where Deschamps J. wrote: “Under the traditional rule, once the jurisdiction of the enforcing court is established, the petitioner must show that he or she meets the conditions for having the judgment recognized and enforced.” [ 36 ] I cannot accede to Chevron’s submission that this phrase was intended to alter this Court’s clear guidance in Morguard and Beals for two reasons.

First, this Court’s insistence in Pro Swing that jurisdiction must be established prior to determining whether the foreign judgment should be recognized and enforced is hardly controversial: jurisdiction must, of course, always be established regardless of the type of action being brought. Otherwise, the court will lack the power to hear and determine the case. Where Chevron’s submission fails, however, is in assuming that the only way to establish jurisdiction is by proving the existence of a real and substantial connection between the foreign judgment debtor and the Canadian forum.

In my view, jurisdiction in an action limited to recognition and enforcement of a foreign judgment within the province of Ontario is established when service is effected on a defendant against whom a foreign judgment debt is alleged to exist. There is no requirement, nor need, to resort to the real and substantial connection test. [ 37 ] Second, Deschamps J. clearly stated the prerequisites to recognition and enforcement elsewhere in her reasons, and did not insist or expand upon such a requirement. She wrote: The foreign judgment is evidence of a debt.

All the enforcing court needs is proof that the judgment was rendered by a court of competent jurisdiction and that it is final, and proof of its amount. The enforcing court then lends its judicial assistance to the foreign litigant by allowing him or her to use its enforcement mechanisms. ( Pro Swing , at para. 11) This statement is consistent with Morguard and Beals : there is no need to probe the relationship between the enforcing forum and the action or the defendant.

Deschamps J.’s one prior, passing reference to the need for the enforcing court to have jurisdiction cannot serve as a basis for inferring the existence of a significant, and previously unstated, hurdle to recognition and enforcement that simply does not

exist. As is evident from her reasons, she retained the focus on jurisdiction in the original foreign proceeding.

(2) Effect of Van Breda [ 38 ] Chevron also places considerable reliance upon this Court’s decision in Van Breda . In my view, this reliance is misplaced. While there is no denying that the Van Breda decision carries great importance in many areas of Canadian conflict of laws, its intended scope should not be overstated.

Nothing in Van Breda altered the jurisdictional inquiry in actions to recognize and enforce foreign judgments as established by this Court in Morguard , Beals and Pro Swing . [ 39 ] In Van Breda , LeBel J. clearly specified the limited areas of private international law to which the decision was intended to apply. First, he noted at para. 16 that three categories of issues are “intertwined” in private international law: jurisdiction, forum non conveniens and the recognition of foreign judgments.

Although he acknowledged that “[n]one of the divisions of private international law can be safely analysed and applied in isolation from the others”, LeBel J. nonetheless cautioned that “the central focus of these appeals is on jurisdiction and the appropriate forum”, that is, only two of the three categories of issues at play in private international law: para. 16. He went on to propose an analytical framework and legal principles applicable to the assumption of jurisdiction (one way of establishing jurisdiction simpliciter ) and for deciding whether to decline to exercise it ( forum non conveniens ).

Nowhere did he purport to analyze or modify the principles applicable to the recognition and enforcement of foreign judgments, the area of private international law that is the central focus of this appeal. [ 40 ] Second, LeBel J. further ― and repeatedly ― confined the principles he developed in Van Breda to the assumption of jurisdiction in tort actions.

For example, he said: “. . . this Court must craft more precisely the rules and principles governing the assumption of jurisdiction by the courts of a province over tort cases in which claimants sue in Ontario, but at least some of the events that gave rise to the claims occurred outside Canada or outside the province” (para. 68). He later added the following: “Before I go on to consider a list of presumptive connecting factors for tort cases, I must define the legal nature of the list” (para. 80).

Perhaps most tellingly, LeBel J. stated, at para. 85: “The list of presumptive connecting factors proposed here relates to claims in tort and issues associated with such claims. It does not purport to be an inventory of connecting factors covering the conditions for the assumption of jurisdiction over all claims known to the law.” [ 41 ] To accept Chevron’s argument would be to extend Van Breda into an area in which it was not intended to apply, and in which it has no principled reason to meddle.

In fact, and more compellingly, the principles that animate recognition and enforcement indicate that Van Breda ’s pronouncements should not apply to recognition and enforcement cases. It is to these principles that I will now turn.

(3) Principles Underlying Actions for Recognition and Enforcement [ 42 ] Two considerations of principle support the view that the real and substantial connection test should not be extended to an enforcing court in an action for recognition and enforcement. First, the crucial difference between an action at first instance and an action for recognition and enforcement is that, in the latter case, the only purpose of the action is to allow a pre-existing obligation to be fulfilled. Second, the notion of comity, which has consistently underlain actions for recognition and enforcement, militates in favour of generous enforcement rules. (

a) Purpose of Recognition and Enforcement Proceedings [ 43 ] Canadian law recognizes that the purpose of an action to recognize and enforce a foreign judgment is to allow a pre- existing obligation to be fulfilled; that is, to ensure that a debt already owed by the defendant is paid. As Pitel and Rafferty explain, such an action “is based not on the original claim the plaintiff had pursued against the defendant but rather on the obligation created by the foreign judgment”: p. 159; see also P. M. Perell and J. W. Morden, The Law of Civil Procedure in Ontario (2nd ed. 2014), at ¶11.177.

The following comment made by McLachlin C.J. in Pro Swing (although in dissent) also reflects this logic: “Barring exceptional concerns, a court’s focus when enforcing a foreign judgment is not on the substantive and procedural law on which the judgment is based, but instead on the obligation created by the judgment itself” (para. 77). [ 44 ] Important consequences flow from this observation. First, the purpose of an action for recognition and enforcement is not to evaluate the underlying claim that gave rise to the original dispute, but rather to assist in enforcing an already-adjudicated obligation.

In other words, the enforcing court’s role is not one of substance, but is instead one of facilitation: Pro Swing , at para. 11. The court merely offers an enforcement mechanism to facilitate the collection of a debt within the jurisdiction. This entails that the enforcing court does not exercise jurisdiction in the same way as it does in actions at first instance.

In a first instance case like Van Breda , the focus is on whether the court has jurisdiction to determine the merits of a substantive legal claim; in a recognition and enforcement case, the court does not create a new substantive obligation, but instead assists with the fulfillment of an existing one. [ 45 ] It follows that there can be no concern that the parties are located elsewhere, or that the facts underlying the dispute are properly addressed in another court, factors that might serve to undermine the existence of a real and substantial connection with the forum in first instance adjudication.

The defendant will, of course, not have a significant connection with the forum, otherwise an independent jurisdictional basis would already exist for proceeding against him or her. Moreover, the facts underlying the original judgment are irrelevant, except insofar as they relate to potential defences to enforcement. The only important element is the foreign judgment itself, and the legal obligation it has created.

Simply put, the logic for mandating a connection with the enforcing jurisdiction finds no place. [ 46 ] Second, enforcement is limited to measures ― like seizure, garnishment, or execution ― that can be taken only within the confines of the jurisdiction, and in accordance with its rules: Pro Swing , at para. 11; J. Walker, Castel & Walker: Canadian Conflict of Laws (6th ed. (loose-leaf)), at p. 11-52 . The recognition and enforcement of a judgment therefore has a limited impact: as Walker states, “[a]n order enforcing a foreign judgment applies only to local assets” (p. 14-11).

The enforcing court’s judgment has no coercive force outside its jurisdiction. Whether recognition and enforcement should proceed depends entirely on the enforcing forum’s laws. The dispute does not contain a foreign element that would make resort to the real and substantial connection test necessary. Walker adds that, as a result, since enforcement concerns only local assets, “there is no basis for staying the proceedings on the grounds

that the forum is inappropriate or that the judgment debtor’s principal assets are elsewhere”: ibid. [47] Third, and flowing from this reality, any potential constitutional concerns that might sometimes emerge in conflict oflaws cases simply do not arise in recognition and enforcement proceedings. In Morguard, the Court elaborated a conflict of laws ruleand also hinted, without deciding, that the test might have constitutional foundations: pp. 1109-10. In Hunt v.

T&N plc, (SCC), [1993] 4 S.C.R. 289, the Court confirmed that Morguard had created a constitutional principle that was applicable to theassumption of jurisdiction. LeBel J. later reaffirmed and clarified this in Van Breda, where he noted that the real and substantialconnection test has a dual nature: first, it serves as a constitutional principle; second, it constitutes a conflict of laws rule (paras. 22-24).

He stated that “in Canadian constitutional law, the real and substantial connection test has given expression to the constitutionallyimposed territorial limits that underlie the requirement of legitimacy in the exercise of the state’s power of adjudication”; he added thatthe test “suggests that the connection between a state and a dispute cannot be weak or hypothetical”, as such a connection “would castdoubt upon the legitimacy of the exercise of state power over the persons affected by the dispute”: para. 32. [48] No concern about the legitimacy of the exercise of state power exists in actions to recognize and enforce foreignjudgments against judgment debtors.

As I have explained, when such an action comes before a Canadian court, the court is not assumingjurisdiction over the parties in the same way as would occur in a first instance case. The enforcing court has no interest in adjudicatingthe original rights of the parties. Rather, the court merely seeks to assist in the enforcement of what has already been decided in anotherforum. As Deschamps J. aptly stated in Pro Swing, “[t]he enforcing court . . . lends its judicial assistance to the foreign litigant byallowing him or her to use its enforcement mechanisms”: para. 11.

The manner in which the court exercises control over the parties isthus different ― and far less invasive ― than in an action at first instance. [49] In most recognition and enforcement proceedings, the only factor that draws a foreign judgment creditor to theprovince is the potential for assets upon which to ultimately enforce the judgment. Enforcement is limited to the seizable assets foundwithin the province. No constitutional concern about the legitimacy of this exercise of jurisdiction emerges.

I acknowledge that, underprovincial legislation, a recognition and enforcement judgment issued in one province may be capable of being “registered” in anotherprovince, thus offering some advantage to plaintiffs who have already successfully obtained a recognition and enforcement judgment.

Nevertheless, the existence of such legislation does not alter the basic fact that absent some obligation to enforce another forum’sjudgments, the judicial system of each province controls access to its jurisdiction’s enforcement mechanisms, whenever a foreignjudgment creditor seeks to seize assets within its territory in satisfaction of a foreign judgment debt. [50] In addition, the obligation created by a foreign judgment is universal; there is no competing claim to jurisdictionwith respect to it.

If each jurisdiction has an equal interest in the obligation resulting from a foreign judgment, it is hard to see how anyconcern about territorial overreach could emerge. Simply put, there can be no concern about jurisdictional overreach if no jurisdictioncan reach further into the matter than any other. The purposes that underlie recognition and enforcement proceedings simply do notrequire proof of a real and substantial connection between the dispute and Ontario, whether for constitutional reasons or otherwise. (

b) The Notion of Comity in Recognition and Enforcement Proceedings [51] Beyond this, it must be remembered that the notion of comity has consistently been found to underlie Canadianrecognition and enforcement law.

In Morguard, this Court stated that comity refers to “the deference and respect due by other states tothe actions of a state legitimately taken within its territory”, as well as “the recognition which one nation allows within its territory to thelegislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights ofits own citizens or of other persons who are under the protection of its laws”: pp. 1095-96, quoting with approval the U.S. SupremeCourt’s foundational articulation of the concept of comity in Hilton v.

Guyot, 159 U.S. 113 (1895), at pp. 163-64; see also Spencer v. TheQueen, (SCC), [1985] 2 S.C.R. 278, at p. 283, per Estey J., concurring. [52] The Court’s formulation of the notion of comity in Morguard was quoted with approval in Beals: para. 20. In Hunt,the Court observed that “ideas of ‘comity’ are not an end in themselves, but are grounded in notions of order and fairness to participantsin litigation with connections to multiple jurisdictions”: p. 325. In Tolofson v.

Jensen, (SCC), [1994] 3 S.C.R. 1022, theCourt again referred to the notion of comity, stating that it entails respect for the authority of each state “to make and apply law within itsterritorial limit”, and that “to accommodate the movement of people, wealth and skills across state lines, a byproduct of moderncivilization, [states] will in great measure recognize the determination of legal issues in other states”: p. 1047. In Pro Swing, the Courtdescribed comity as a “balancing exercise” between “respect for a nation’s acts, international duty, convenience and protection of anation’s citizens”: para. 27.

Finally, in Van Breda, LeBel J. emphasized that the goal of modern conflicts systems rests on the principleof comity, which, although a flexible concept, calls for the promotion of order and fairness, an attitude of respect and deference to otherstates, and a degree of stability and predictability in order to facilitate reciprocity: para. 74.

This is true of all areas of privateinternational law, including that of the recognition and enforcement of foreign judgments. [53] As this review of the Court’s statements on comity shows, the need to acknowledge and show respect for the legalacts of other states has consistently remained one of the principle’s core components. Comity, in this regard, militates in favour ofrecognition and enforcement. Legitimate judicial acts should be respected and enforced, not sidetracked or ignored.

The concepts oforder and fairness in which comity is grounded are not affronted by rejecting Chevron’s proposed extension of the real and substantialconnection test. This is so for several reasons. [54] First, in recognition and enforcement proceedings, order and fairness are protected by ensuring that a real andsubstantial connection existed between the foreign court and the underlying dispute. If such a connection did not exist, or if thedefendant was not present in or did not attorn to the foreign jurisdiction, the resulting judgment will not be recognized and enforced inCanada.

The judgment debtor is free to make this argument in the recognition and enforcement proceedings, and indeed will havealready had the opportunity to contest the jurisdiction of the foreign court in the foreign proceedings. Here, for instance, it is acceptedthat Chevron attorned to the jurisdiction of the Ecuadorian courts. As Walker writes, “[t]he jurisdictional requirements of order andfairness considered in the context of direct jurisdiction operate to promote the international acceptance of the adjudication of a matter bya Canadian court”: p. 14-1 (emphasis in original).

There is no similar requirement of international acceptance in the context of therecognition and enforcement of a foreign judgment.

[55] Second, no unfairness results to judgment debtors from having to defend against recognition and enforcementproceedings. In essence, through their own behaviour and legal noncompliance, the debtors have made themselves the subject ofoutstanding obligations. It is for this reason that they may be called upon to answer for their debts in various jurisdictions.

Of course,the principles of order and fairness are also protected by providing a foreign judgment debtor with the opportunity to convince theenforcing court that there is another reason why recognition and enforcement should not be granted: see Beals, at paras. 39 et seq. [56] Third, contrary to Chevron’s argument, a requirement that the defendant have a real and substantial connection withthe enforcing court in the sense of being present or having assets in the province would only undermine order and fairness.

Inrecognition and enforcement proceedings, besides an unlikely attornment by the defendant, the only way a real and substantialconnection with the enforcing forum could be achieved, in the end, is through presence or assets in the jurisdiction. However, presencewill frequently be absent given the very nature of the proceeding at issue. Indeed, rule 17.02(

m) is implicitly based on an expectationthat the defendant in a claim on a judgment of a court outside Ontario will not be present in the province. Requiring assets to be presentin the jurisdiction when recognition and enforcement proceedings are instituted is also not conducive to order or fairness. For one thing,assets such as receivables or bank deposits may be in one jurisdiction one day, and in another the next.

If jurisdiction over recognitionand enforcement proceedings were dependent upon the presence of assets at the time of the proceedings, this may ultimately prove toonly benefit those debtors whose goal is to escape rather than answer for their liabilities, while risking depriving creditors of access tofunds that might eventually enter the jurisdiction. [57] In today’s globalized world and electronic age, to require that a judgment creditor wait until the foreign debtor ispresent or has assets in the province before a court can find that it has jurisdiction in recognition and enforcement proceedings would beto turn a blind eye to current economic reality.

The motion judge rightly opined as follows on this subject: In an age of electronic international banking, funds once in the hands of a judgment debtor can quickly leave a jurisdiction. While it ishighly unlikely that a judgment debtor would move assets into a jurisdiction in the face of a pending recognition action, in somecircumstances judgment debtors may not control the timing or location of the receipt of an asset due to them; control may rest in thehands of a third party as a result of contract or otherwise.

Where a judgment creditor under a foreign judgment learns that its judgmentdebtor may come into possession of an asset in the foreseeable future, it might want the recognition of its foreign judgment in advance ofthat event so that it could invoke some of the enforcement mechanisms of the receiving jurisdiction, such as garnishment. To insist thatthe judgment creditor under a foreign judgment await the arrival of the judgment debtor’s asset in the jurisdiction before seekingrecognition and enforcement could well prejudice the ability of the judgment creditor to recover on its judgment.

Given the wide varietyof circumstances - including timing - in which a judgment debtor might come into possession of an asset, I do not think it prudent to laydown a hard and fast rule that assets of the judgment debtor must exist in the receiving jurisdiction as a pre-condition to the receivingjurisdiction entertaining a recognition and enforcement action. [para. 81] I note that in one Ontario lower court decision, albeit in the context of forum non conveniens, the existence of assets has been held to beirrelevant to the jurisdictional inquiry: see BNP Paribas (Canada) v.

Mécs (2002), (ON SC), 60 O.R. (3d) 205(S.C.J.). [58] In this regard, I find persuasive value in the fact that other common law jurisdictions ― presumably equallyconcerned about order and fairness as our own ― have also found that the presence of assets in the enforcing jurisdiction is not aprerequisite to the recognition and enforcement of a foreign judgment. [59] In Tasarruf Mevduati Sigorta Fonu v.

Demirel¸ [2007] EWCA Civ 799, [2007] 1 W.L.R. 2508, for example, theEngland and Wales Court of Appeal (Civil Division) held that “a claimant seeking to enforce a foreign judgment by action does not haveto show that there are assets in the jurisdiction. To require him to do so would be tantamount to construing the rule as if it were limitedin that way”: para. 29.

The court also held that to be granted permission to serve ex juris (permission that is needed under the applicableEnglish procedural rules), the claimant is required to show “that he has a good arguable case in the action, that is that he has a goodarguable case that judgment should be given based upon the foreign judgment”: ibid. The court continued, holding that the claimantmust “ordinarily show further that he can reasonably expect a benefit from such a judgment”: ibid.

However, on the facts of the case, itheld that service ex juris should be permitted where the defendant did not possess assets in England at the time, but had a “reasonablepossibility” of having assets in London “one of these days”: para. 40. [60] The High Court of Ireland followed a similar approach in Yukos Capital S.A.R.L. v. OAO Tomskneft VNK, [2014]IEHC 115, in an arbitration context, holding that “the presence of assets within the jurisdiction is not a pre-requisite for the granting ofleave to serve out of the jurisdiction on an application to enforce a Convention Award”: para. 112 (BAILII).

Although the court quotedwith approval the passages from Tasarruf to the effect that the applicant must demonstrate that some potential benefit would accrueshould the recognition and enforcement action succeed, it nevertheless accepted, with no hesitation, that “the seeking of recognition andenforcement of an award in a country where the losing party may have no assets in order to obtain the imprimatur of a respected courtupon the award is acceptable”: para. 128. [61] The U.S. courts appear to be divided on the prerequisites to recognition and enforcement: see R. A.

Brand, “FederalJudicial Center International Litigation Guide: Recognition and Enforcement of Foreign Judgments” (2013), 74 U. Pitt. L. Rev. 491.Some, as exemplified by the decision in Lenchyshyn v. Pelko Electric, Inc., 723 N.Y.S.2d 285 (App. Div. 2001), take a broad approach. In Lenchyshyn, the Supreme Court of New York, Appellate Division, held that personal jurisdiction need not be established overjudgment debtors for recognition and enforcement to proceed.

In the court’s view, “[r]equiring that the judgment debtor have a‘presence’ in or some other jurisdictional nexus to the state of enforcement would unduly protect a judgment debtor and enable himeasily to escape his just obligations under a foreign country money judgment” (p. 292); moreover, no constitutional obligation exists tosatisfy such a requirement (p. 289).

The court concluded that “even if defendants do not presently have assets in New York, plaintiffsnevertheless should be granted recognition of the foreign country money judgment . . . and thereby should have the opportunity to pursueall such enforcement steps in futuro, whenever it might appear that defendants are maintaining assets in New York”: p. 291. The samecourt recently reiterated the Lenchyshyn approach in Abu Dhabi Commercial Bank PJSC v. Saad Trading, Contracting and FinancialServices Co., 986 N.Y.S.2d 454 (App. Div. 2014). Other state and district courts have also adopted its reasoning: Haaksman v.

DiamondOffshore (Bermuda), Ltd., 260 S.W.3d 476 (Tex. App. 2008); Pure Fishing, Inc. v. Silver Star Co., 202 F.Supp.2d 905 (N.D. Iowa 2002).

[ 62 ] As the motion judge below correctly pointed out, some U.S. courts have taken a different approach. For instance, the Michigan Court of Appeals stated the following in Electrolines, Inc. v. Prudential Assurance Co. , 677 N.W.2d 874 (2004): We hold that where plaintiff failed to identify any property owned by defendants in Michigan, the trial court erred in holding that it was unnecessary for plaintiff to demonstrate that the Michigan court had personal jurisdiction over defendants in this common-law enforcement action. . . . We have not found any authorities indicating that the founda

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