2015 NBCA 1, 2015 NBCA 1

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 100-13-CA NACKAWIC MECHANICAL LTD., carrying onbusiness as SDI AVIATION APPELLANT NACKAWIC MECHANICAL LTD., faisant affairesous le nom de SDI AVIATION APPELANTE - and - - et - ROBERT WARD and BRENDA WARD RESPONDENTS ROBERT WARD et BRENDA WARD INTIMÉS Nackawic Mechanical Ltd. v. Ward, 2015 NBCA 1 Nackawic Mechanical Ltd. c.

Ward, 2015 NBCA 1 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Quigg CORAM : l’honorable juge en chef Drapeau l’honorable juge Larlee l’honorable juge Quigg Appeal from a decision of the Court of Queen’sBench: September 12, 2013 Appel d’une décision de la Cour du Banc de la Reine: le 12 septembre 2013 History of Case: Historique de la cause : Decision under appeal: 2013 NBQB 296 Décision frappée d’appel : 2013 NBQB 296 , 2013 NBBR 296 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: March 19 and September 25, 2014 Appel entendu : les 19 mars et 25 septembre 2014 Judgment rendered: January 8, 2015 Jugement rendu : le 8 janvier 2015

Reasons for judgment by: The Honourable Justice Larlee Motifs de jugement : l’honorable juge Larlee Concurred in by: The Honourable Chief Justice Drapeau The Honourable Justice Quigg Souscrivent aux motifs : l’honorable juge en chef Drapeau l’honorable juge Quigg Counsel at hearing: For the appellant: Ryan P. Burgoyne For the respondents: Hugh J. Cameron Avocats à l’audience : Pour l’appelante : Ryan P. Burgoyne Pour les intimés : Hugh J. Cameron THE COURT The appeal is allowed without costs. LA COUR L’appel est accueilli sans dépens. The judgment of the Court was delivered by LARLEE, J.A. I.

Introduction and Brief Overview of the Facts [ 1 ] The respondent, Robert Ward, sustained personal injuries in a fall from an aircraft de-icer, which he claimed had been manufactured by the appellant, Nackawic Mechanical Ltd. On August 11, 2009, Mr. Ward and his wife commenced an action against Nackawic Mechanical by way of a Complaint filed with the Ohio Court of Common Pleas alleging product liability and negligence. Damages were claimed for Mr.

Ward’s inability to work, earning impairment, lost wages, loss of enjoyment of everyday activities, inability to use his right arm, permanent physical limitations, loss of enjoyment of life, pain and suffering and loss of consortium. [ 2 ] On September 25, 2009, Jeffrey D. Young, an officer of Nackawic Mechanical, submitted on its behalf an Answer to the Wards’ Complaint. That Answer was subsequently struck from the record by the Ohio Court, as Mr. Young is not a lawyer approved to practice law in that state.

Nackawic Mechanical was given until April 2, 2010, to file an Answer through counsel approved to practice law in Ohio, but declined to do so. As a result, it was noted in default. [ 3 ] On October 15, 2010, the Wards filed a motion for default judgment, and were eventually

awarded judgment in Ohio against Nackawic Mechanical in the amount of $1,000,000.

Nackawic Mechanical did not appeal the noting in default, the judgment, or the assessment of damages, and took no further action until the Wards filed a Notice of Application in this jurisdiction to have the Ohio default judgment “ entered with the Court of Queen’s Bench of New Brunswick” (emphasis added), pursuant to the Foreign Judgments Act , R.S.N.B. 2011, c. 162. [ 4 ] In December 2012, Nackawic Mechanical requested and obtained an adjournment of the application hearing to consult Ohio counsel to determine if it still had the option of setting aside the default judgment and filing an Answer in compliance with Ohio law.

However, Nackawic Mechanical was informed it was too late to set aside the default judgment. [ 5 ] On September 12, 2013, the application judge issued an order “allowing the Ohio judgment to be entered as a judgment of the Court of Queen’s Bench of New Brunswick pursuant to the Act for $965,980 Canadian funds”. The judge advised the parties they could return to present further argument if they could not agree on interest. As well, the judge fixed the costs of the application at $4,000. II.

Grounds of Appeal [ 6 ] In its Notice of Appeal, Nackawic Mechanical contends the application judge: 1) erred in law and in fact in finding that [it] submitted to the jurisdiction of the court of the foreign country and that the court of the foreign country had jurisdiction pursuant to

section 2 of the Foreign Judgments Act ; 2) did not consider whether the Ohio proceedings were contrary to natural justice pursuant to

section 5 (

i) of the Foreign Judgments Act , or erred in law and in fact in finding that the Ohio proceedings were not contrary to natural justice pursuant to

section 5(

i) of the Foreign Judgments Act . Specifically, the judge did not apply the proper legal test under

section 5(

i) of the Foreign Judgments Act . The Ohio proceedings were contrary to natural justice as Nackawic Mechanical is unable to have the default judgment in Ohio set aside to allow it to defend the action on the merits; 3) erred in law in finding that the Ohio judgment was not in respect of a cause of action that, for reasons of public policy or for similar reasons, would not have been entertained by the Courts of New Brunswick pursuant to

section 5 (

h) of the Foreign Judgments Act . Specifically, the Ohio judgment is in the name of both Robert and Brenda Ward and includes damages for loss of consortium, a head of damages which was expressly repealed by the New Brunswick legislature at section 4(8) of

An Act Respecting Compliance of the Laws of the Province with the Canadian Charter of Rights and Freedoms , S.N.B. 1985, c. 41 . [ 7 ] The Wards filed a Notice of Contention; they contend the decision of the application judge should be affirmed on grounds other than those given: 1) […] the appropriate course of action would have been for [Nackawic Mechanical] to bring a motion in Ohio to set aside the default Judgment; 2) […] merely because the New Brunswick legislature has removed loss of consortium as a head of damages does not mean that to enforce a foreign judgment (which may or may not have taken into account this head of damages) would be contrary to public policy. [ 8 ] In addition, or in the alternative, the Wards contend that, in the event the appeal is allowed, in whole or in part, they are entitled to different relief than that granted by the application judge, as follows: 1) In the event this Court holds that the damages awarded in the Ohio action were awarded contrary to public policy, insofar as the damages awarded include damages for loss of consortium, and, in the event that this Court overturns the judge’s decision in this regard: a.

The Respondents state that they are entitled to substantially similar relief with a minor reduction for this head of damages; or, in the

further alternative, b. The Respondents contend that they are entitled to the special damages awarded by the Ohio Court, being $83,222.86 in medical and related expenses paid as well as lost wages in the amount of $650,000.00 for a total amount of $733,222.86. III. Issues [ 9 ] On March 19, 2014, after an initial hearing on these issues, the Court adjourned the hearing to allow further submissions with respect to two specific questions: 1. Was it proper to bring the proceedings by way of a Notice of Application as opposed to a Notice of Action? 2. What remedy is available under the Foreign Judgments Act ?

Both parties filed additional written submissions before the hearing resumed on September 25, 2014, at which time the two issues raised by the Court were fully debated. IV. Analysis and Decision A. Error by Application Judge [ 10 ] The application judge granted a remedy (“allowing the Ohio judgment to be entered as a judgment of the Court of Queen’s Bench”) that she was not able to grant because it does not come within the legislative authority available to her. The Reciprocal Enforcement of Judgments Act , R.S.N.B. 1973, c. R-3 does not apply in this case because Ohio is not a signatory.

For the Foreign Judgments Act (the Act ) to apply, proceedings must be brought either on the foreign judgment or on the original cause of action. If proceedings are brought on the foreign judgment, the cause of action is for the debt that arises from the foreign judgment.

The law on point is clear and is aptly summarized in Bullen & Leake & Jacob’s Precedents of Pleadings , 13th ed. (London: Sweet & Maxwell, 1990): “In the absence of statutory provision enabling the [foreign] judgment to be enforced by execution in this country, the proper method of enforcement is by action on the basis that the judgment is regarded as creating a debt between the parties” (p. 578). [ 11 ] Neither side to the underlying litigation drew the application judge’s attention to the fact that the Notice of Application sought relief that was not available under the Act .

As a result, the judge did not turn her mind to her limited jurisdiction under the Act. Moreover, she was not asked to consider a suitable amendment to the Notice of Application nor did she consider the appropriateness of converting the application to an action for the recovery of the debt arising from the Ohio default judgment. [ 12 ] Proceedings may be initiated by way of a Notice of Application in the specific circumstances set out in Rule 16. Moreover, and more generally, a Notice of Application is appropriate where the relevant facts are not in dispute.

The circumstances in play here do not fall within any of the specific instances set out in Rule 16. In addition, relevant facts are in dispute, in particular whether Nackawic Mechanical submitted to the jurisdiction of the Ohio court. [ 13 ] Sections 2 , 5 and 7 of the Act are germane: 2 For the purposes of this Act , in an action in personam a court of a foreign country has jurisdiction in the following cases only: 2 Pour l’application de la présente loi, dans une action in personam , un tribunal d’un pays étranger a compétence uniquement dans les cas suivants :

(

a) if the defendant is, at the time of the commencement of the action, ordinarily resident in that country; (

b) if the defendant has submitted to the jurisdiction of that court by (

i) becoming a plaintiff in the action, (ii) voluntarily appearing as a defendant in the action without protest, or (iii) having expressly or impliedly agreed to submit to the jurisdiction of that court. 5 If an action is brought in the Province on a foreign judgment, it shall be a sufficient defence that: (

a) the original court did not have jurisdiction for the purposes of this Act ; (

b) the defendant, being a defendant in the original action, was not duly served with the process of the original court and did not appear, even though the defendant was ordinarily resident in the foreign country or agreed to submit to the jurisdiction of that court; (

c) the judgment was obtained by fraud; (

d) the judgment is not a final judgment; (

e) the judgment is not for a sum certain in money; (

f) the judgment is for payment of a penalty or a sum of money due under the revenue laws of the foreign country;

a) lorsque le défendeur a sa résidence habituelle dans ce pays au moment où l’action est introduite;

b) lorsque le défendeur a reconnu la compétence de ce tribunal : (

i) en devenant demandeur dans l’action, (ii) en comparaissant volontairement comme défendeur à l’action sans contester la compétence du tribunal, (iii) en acceptant expressément ou tacitement de se soumettre à la compétence du tribunal. 5 Lorsqu’une action fondée sur un jugement étranger est intentée dans la province, les moyens de défense suivants suffisent :

a) le tribunal d’origine n’avait pas compétence aux fins d’application de la présente loi;

b) le défendeur, qui était également défendeur dans l’action originale, n’a pas reçu signification régulière des actes de procédure du tribunal d’origine et n’a pas comparu, même s’il résidait habituellement dans le pays étranger ou même s’il avait accepté de se soumettre à la compétence de ce tribunal;

c) le jugement a été obtenu de façon frauduleuse;

d) le jugement n’est pas définitif;

e) le jugement ne condamne pas au paiement d’une somme d’argent déterminée;

f) le jugement condamne au paiement d’une amende ou d’une somme d’argent due aux termes des lois fiscales du pays étranger;

g) le jugement a été exécuté ou, pour tout autre motif, le jugement n’est pas un jugement subsistant;

h) le jugement se rapporte à une cause d’action qui, pour des motifs d’ordre public ou pour des motifs similaires, n’aurait pas été

(

g) the judgment has been satisfied or for anyother reason is not a subsisting judgment; (

h) the judgment is in respect of a cause ofaction that, for reasons of public policy or forsimilar reasons, would not have beenentertained by the courts of this province; (

i) the proceedings in which the judgment wasobtained were contrary to natural justice. 7 Nothing in this Act prevents the bringing ofan action on the original cause of action inrespect of which a foreign judgment wasobtained. connue par les tribunaux de la province;

i) l’action au cours de laquelle le jugement aété obtenu était contraire à la justicenaturelle. 7 Aucune disposition de la présente loin’interdit une action fondée sur la caused’action originale à l’égard de laquelle unjugement étranger a été obtenu. [14] The Act allows an action in this province on a foreign judgment, but there is no authority in itfor the registration of a foreign judgment. No other legislation is applicable in the circumstances.

Nonetheless, as indicated, theapplication judge granted the following relief: An order shall issue allowing the Ohio judgment to be entered as a judgment of the Court pursuant to the Act for $965,980 Canadianfunds. The application judge did not have jurisdiction to make this order. That leaves unanswered the question of whether the underlyingapplication should be amended to seek relief available under the Act and whether, if any such amendment were allowed, the underlyingapplication should be converted to an ordinary action. B.

Submission to Jurisdiction [15] A central issue that must be decided by the Court of Queen’s Bench, on proper evidence, iswhether Nackawic Mechanical submitted to the jurisdiction of the Ohio court. If there was submission, Nackawic Mechanical would beunable to raise s. 5(

a) of the Act as a defence to an action brought on the Ohio judgment. The issue of whether a defendant has submittedto a foreign court’s jurisdiction by virtue of “voluntarily appearing as a defendant in the action without protest” (s. 2(b)(ii) of the Act) isone of mixed fact and law.

The core question is whether the defendant has invited the foreign court to consider the merits of the action,resulting in an estoppel type argument premised on consent (the defendant would undoubtedly accept a judgment in his or her favour bythe foreign court if that were the result, and therefore must also accept judgment against him or her) (Mid-Ohio Imported Car Co. v. Tri-K Investments Ltd., (BC CA), [1995] B.C.J. No. 2199 (C.A.) (QL), at para. 16; Janet Walker, Canadian Conflict ofLaws, 6th ed. (Markham, ON: LexisNexis Canada Inc., 2005) (loose-leaf release 44) ch. 11 at 4).

The concept of submitting to thejurisdiction of a foreign court by voluntarily appearing is also referred to as attorning to jurisdiction (Walker, Canadian Conflict of Laws,ch. 11 at 5). [16] The Act, though intended to be uniform legislation in Canada, was adopted only in NewBrunswick and Saskatchewan. At common law, the instances where an original court can properly take jurisdiction have been expandedbeyond presence and submission.

The test in the rest of Canada is whether the foreign jurisdiction has a real and substantial connectionwith the action, and the leading decision on that test is Morguard Investments Ltd. v. De Savoye, (SCC), [1990] 3 S.C.R.1077, [1990] S.C.J. No. 135 (QL). However, the Act has been interpreted to exclude the application of the common law. In NewBrunswick, the foreign court has jurisdiction only in cases where one of the criteria specified in s. 2 is satisfied: 844903 Ontario Ltd. v.Vander Pluijm (1992), (NB KB), 130 N.B.R. (2d) 361, [1992] N.B.J. No. 614 (Q.B.) (QL); Sims et al. v.

Bower(1993), (NB CA), 138 N.B.R. (2d) 302, [1993] N.B.J. No. 576 (C.A.) (QL); Noyes v. Cardinal Couriers Ltd., [1993]S.J. No. 155 (C.A.) (QL); Niles v. Bahadoorsingh et al. (2000), (NB KB), 231 N.B.R. (2d) 62, [2000] N.B.J. No.427 (Q.B.) (QL), at paras. 10-11; Cormier v. Theriault, 2001 NBQB 211, [2001] N.B.R. (2d) (Supp.) No. 85, at para. 14.

[17] Although there are only a few cases that have considered s. 2 of the Act specifically, there areseveral decisions from various courts which address the concept of submitting or attorning to a foreign court’s jurisdiction. The questionis still relevant in jurisdictions that have adopted the real and substantial connection test because that test does not displace the commonlaw, but simply enlarges the circumstances in which a foreign court has jurisdiction: Beals v.

Saldanha, 2003 SCC 72, [2003] 3 S.C.R.416, at para. 34. [18] In Canadian Conflict of Laws, Professor Walker offers the following synopsis of when there hasbeen submission by voluntary appearance: Submission is also clear where the defendant appeared in the foreign action to defend against the claim on the merits.

However, anappearance made solely to contest the jurisdiction of the foreign court, or to seek the release of the defendant’s property, or to protect itafter it has been seized by the foreign court before the judgment does not constitute submission unless the defendant also addresses themerits of the claim. [ch. 14 at 20] [Emphasis added.] [19] Dovenmuehle Inc. v. Rocca Group Ltd. (1981), (NB CA), 34 N.B.R. (2d)444, [1981] N.B.J. No. 102 (C.A.) (QL), affirmed (SCC), [1982] 2 S.C.R. 534, [1982] S.C.J. No. 81 (QL), alsoincludes a discussion on the meaning of “voluntarily appearing without protest”.

Our Court concluded the defendant had not voluntarilyappeared without protest even though it had filed a written appearance with the foreign court and moved to dismiss the action on thebasis that it lacked jurisdiction. Stratton J.A. stated the following with respect to the

interpretation of s. 2 of the Act: In my opinion, the Act must be interpreted as would any other New Brunswick statute. Having regard to the plain meaning of the wordsof s. 2(c)(ii) of the Act, I think there can be no doubt that, as a matter of New Brunswick law, the appearance entered and the motionmade by counsel for Rocca in the Illinois Court cannot be said to have been made “without protest” as contemplated by that

section ofthe Act, and that Rocca’s appearance entered in the Illinois Court merely to protest the jurisdiction of that court did not amount to itsvoluntary submission to that court’s jurisdiction. In concluding that, for the purposes of the Act, the Illinois Court did not havejurisdiction, I adopt as applicable the reasoning of Lord Denning in Re Dulles’ Settlement Trusts (No. 2) at p. 72 where he said: “I cannot see how anyone can fairly say that a man has voluntarily submitted to the jurisdiction of a court when he has all the time beenvigorously protesting that it has no jurisdiction.

If he does nothing and lets judgment go against him in default of appearance, he clearlydoes not submit to the jurisdiction. What difference in principle does it make, if he does not merely do nothing, but actually goes to thecourt and protests that it has no jurisdiction? I can see no distinction at all.

I quite agree, of course, that if he fights the case, not only onthe jurisdiction, but also on the merits, he must then be taken to have submitted to the jurisdiction, because he is then inviting the courtto decide in his favour on the merits, and he cannot be allowed, at one and the same time, to say that he will accept the decision on themerits if it is favourable to him and will not submit to it if it is unfavourable.

But when he only appears with the sole object of protestingagainst the jurisdiction, I do not think he can be said to submit to the jurisdiction.” [para. 29] [Emphasis added.] [20] Dovenmuehle helps establish two ends to a factually based scale, and actions by defendants thatfall somewhere in between must be determined on a case by case basis (see Henry v. Geopresco International Ltd., [1975] 2 All E.R. 702(C.A.), in which the factual dimension of this issue is noted). On one end, if a defendant appears merely to protest jurisdiction, he or shehas not submitted to the jurisdiction of the foreign court.

On the other end, if a defendant files a defence by which she or he invites theforeign court to make a decision on the merits, then there is a voluntary appearance and therefore submission to the foreign court’sjurisdiction (see Phillips v. Phillips, 2005 ABQB 566, [2005] A.J. No. 1005 (QL), at paras. 25-27, affirmed 2006 ABCA 19, [2006] A.J.No. 33 (QL), leave to appeal to SCC refused [2006] S.C.C.A.

No. 95 (QL)). [21] The test for attornment was recently expressed in Ontario as appearing and going “beyondchallenging the jurisdiction of the court based on jurisdiction simpliciter and forum non conveniens” (Fraser v. 4358376 Canada Inc.,2014 ONCA 553, [2014] O.J. No. 3466 (QL), at para. 14). Essentially, the determination examines whether the defendant has consented,by virtue of its conduct, to the court exercising jurisdiction (Walker, Canadian Conflict of Laws, ch. 11 at 4). [22] In that regard, the decision of Stevenson J. in G.A. Racicot Enterprises Limited v.

Moore (1979), (NB KB), 26 N.B.R. (2d) 151, [1979] N.B.J. No. 142 (Q.B.) (QL), merits consideration. In that case, a NewBrunswick resident tried to set aside the registration in this province of an Ontario judgment. In fact, his New Brunswick counsel had

previously forwarded an Appearance to the Ontario court clerk for filing. It was returned because it was not accompanied by the required filing fee. This attempt at appearing did not amount to a submission to the Ontario court’s jurisdiction (para. 9). That decision was followed by MacDonald A.C.J.S.C. (as he then was) in 1302926 Ontario Inc. v. 2334425 Nova Scotia Ltd. , 2004 NSSC 55 , [2004] N.S.J. No. 88 (QL), at para. 31 . [ 23 ] Some instances, in addition to Phillips v.

Phillips , where courts have found a defendant to have voluntarily appeared include: • Filing a written appearance by a solicitor with the foreign court ( First Pacific Credit Union v. Sawatzky, [1985] S.J. No. 898 (Q.B.) (QL), at para. 17 ); • Filing an Answer to Complaint that did not preserve an earlier motion protesting the foreign court’s jurisdiction, and subsequently participating in pre-trial conferences and a settlement conference – despite withdrawing from the proceedings before the foreign court before judgment was rendered ( Morgan v. Guimond Boats Limited, 2006 FCA 401 , [2006] F.C.J.

No. 1838 (QL)); • Combining technical pleadings (such as requesting a claim be struck for lack of particularity) with a motion disputing the foreign court’s jurisdiction ( Mid-Ohio Imported Car Co. v. Tri-K Investments Ltd. ). [ 24 ] Some instances, in addition to Dovenmuehle v. Rocca Group and G.A. Racicot Enterprises Limited v. Moore , where courts have determined there was no voluntary appearance include: • Exchanging correspondence with the solicitor on the other side expressing an intention to defend and file a counterclaim ( Cormier v.

Theriault ); • Filing a motion disputing jurisdiction and interacting with the plaintiff to do so ( 1092072 Ontario Inc. (c.o.b. Elfe Juvenile Products) v. GCan Insurance Co. , [2008] O.J. No. 3943 (S.C.J.) (QL) , affirmed 2009 ONCA 464 , [2009] O.J. No. 2316 (QL)); • Appearing to seek the release of the defendant’s property, or to protect it after it has been seized by the foreign court before the judgment (Walker, Canadian Conflict of Laws , ch. 14 at 20). [ 25 ] The Act is primarily concerned with an action brought in this province for the debt that arises from the foreign judgment.

However, by virtue of s. 7 , nothing in the Act prevents the bringing of an action upon the original cause of action. Of course, if the person who holds the foreign judgment elects to bring an action in New Brunswick upon the original cause of action, a defendant in that action would certainly be entitled to defend on the merits. On the other hand, if the action is the common law action for debt arising from the foreign judgment, s. 4 of the Act does not allow the judgment debtor to defend on the merits as if it were an action on the original cause of action.

The Act provides for certain defences in s. 5 that can be raised where the action is brought on the foreign judgment. Nackawic Mechanical has raised s. 5 (

a) as a defence (the Ohio court did not have jurisdiction). The issue is whether it submitted to the Ohio court’s jurisdiction, not whether there is a defence on the merits to the original action. In that regard, it bears noting that Nackawic Mechanical takes the position that it did not manufacture the de-icer from which Mr. Ward fell. [ 26 ] The Wards argue Nackawic Mechanical submitted to the Ohio court’s jurisdiction for three reasons: an Answer was filed on its behalf; Jeffrey D.

Young “participated” in two pre-trial telephone conferences (the first on January 26, 2010); and Nackawic Mechanical received documents pursuant to documentary discovery and it failed to abide by orders of the Ohio court. [ 27 ] For its part, Nackawic Mechanical argues it did not “appear” because the Answer purportedly filed on its behalf was a nullity. According to Ohio law, an Answer is not valid unless it is filed by a lawyer qualified to practice in Ohio.

In fact, the Wards brought their motion for default judgment in Ohio on the basis that the Answer filed on behalf of Nackawic Mechanical was void because Jeffrey D. Young was not a lawyer qualified to practice in Ohio, and they received a default judgment as a result. Further, Nackawic Mechanical contends it did not “participate” in a telephone conference on January 26, 2010, but did call in on a second date. The record is mute on the extent of Mr. Young’s involvement in any telephone conference.

The application judge accepted that his involvement in the second pretrial telephone conference amounted to a submission to jurisdiction by Nackawic Mechanical. One of the problems with that conclusion is this: it is based, at least in part, on the assertion in an affidavit by an Ohio lawyer that Nackawic

Mechanical submitted to the Ohio court’s jurisdiction by “failing to abide by the Order of the Ohio court”. This assertion is unquestionably wrong as a matter of law: a failure to abide by an order of a foreign court cannot weigh in the balance in determining whether or not there has been a submission to the jurisdiction of that court. [ 28 ] In this case, what Jeffrey D. Young actually did and said on behalf of Nackawic Mechanical is crucial to the determination of whether it submitted to the jurisdiction of the Ohio court. The facts relating to jurisdiction are very much in dispute.

Proceeding by way of a Notice of Application is inappropriate in those circumstances. Indeed, the issue of submission to jurisdiction should not be decided on the basis of affidavits, and it cannot be decided by us on the evidence that exists on the record. [ 29 ] It bears noting as well that the Wards have argued on appeal that by marketing in and exporting to a foreign jurisdiction, the manufacturer of a product impliedly submits to the jurisdiction of the courts in the foreign jurisdiction if harm is caused therein by its product.

This raises the question of whether Nackawic Mechanical manufactured the de-icer machine from which Mr. Ward fell. The proper way to determine this issue is by way of an ordinary action. [ 30 ] The question of submission to jurisdiction aside, the fatal error here is that the trial judge could not grant judgment under the Act in the way that she did. C. Remedy [ 31 ] In 2013, our Rules of Court were amended to incorporate the principle of proportionality.

Rule 1.02.1 provides: 1.02.1 Proportionality In applying these rules, the court shall make orders and give directions that are proportionate to what is at stake in the proceeding and the importance and complexity of the issues. 1.02.1 Proportionnalité Lorsqu’elle applique les présentes règles, la cour rend des ordonnances et donne des directives qui sont proportionnées aux enjeux de l’instance ainsi qu’à l’importance et à la complexité des questions en litige. [ 32 ] In J.H. v.

T.H. , 2014 NBCA 52 , 422 N.B.R. (2d) 388, the Court, relying on the proportionality rule, decided that because of the delay and cost associated with the parties’ numerous appearances before the courts, it was able, on the basis of the evidence adduced in the Court of Queen’s Bench, to make the determination that should have been made in the first instance. This is not the situation in the case at bar. [ 33 ] The proper resolution of this appeal is to set aside the application judge’s decision because she was without jurisdiction to grant judgment as she did, and to return the case to the Court of Queen’s Bench.

V. Disposition [ 34 ] Accordingly, I would allow the appeal, set aside the decision of the Court of Queen’s Bench and remit the case to that Court to consider whether the Notice of Application should be amended to claim relief that is allowable under the Foreign Judgments Act . If leave to amend is granted, the application should then be converted to and processed as an ordinary action. [ 35 ] I would not order any costs below or on appeal because the issues critical to the resolution of the appeal were raised by the Court.

____________________________________ M.E.L. LARLEE, J.A. WE CONCUR: ___________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK ____________________________________ KATHLEEN A. QUIGG, J.A.