Double Diamond Distribution Ltd. Appellant (Respondent) v. Garman Turner Gordon LLP, 2021 SKCA 61

Court of Appeal for Saskatchewan Docket: CACV3653 Citation: Double Diamond Distribution Ltd. v Garman Turner Gordon LLP , 2021 SKCA 61 Date: 2021-04-14 Between: Double Diamond Distribution Ltd. Appellant (Respondent) And Garman Turner Gordon LLP Respondent (Applicant) Before: Ottenbreit, Leurer and Barrington-Foote JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Barrington-Foote Concurring reasons by: The Honourable Mr. Justice Ottenbreit On appeal from: QBG 3578 of 2018, Regina Appeal heard: November 3, 2020 Counsel: Tom C.

Stepper for the Appellant Andrew E. Stead for the Respondent Leurer J.A. I. INTRODUCTION [ 1 ] This appeal concerns the enforcement of a foreign judgment pursuant to The Enforcement of Foreign Judgments Act , SS 2005, c E-9.121 [ EFJA ]. [ 2 ] On August 21, 2018, the United States Bankruptcy Court for the District of Nevada [Nevada Court] ordered that Double Diamond Distribution Ltd. [Double Diamond] pay to Garman Turner Gordon LLP [GTG] the sum of $450,428.09 USD [Nevada judgment].

The Nevada judgment remains substantially unpaid. [ 3 ] A Court of Queen’s Bench Chambers judge later granted an order recognizing the Nevada judgment and directing Double Diamond to pay GTG $605,825.78 (CDN), based on the prevailing rate of exchange between United States and Canadian dollars: Garman Turner Gordon LLP v Double Diamond Distribution Ltd. (11 May 2020) Regina, QBG 3578 of 2018 [ Chambers Decision ]. [ 4 ] Double Diamond now appeals the Chambers Decision to this Court. I would dismiss its appeal. My reasons follow. I. BACKGROUND A. The Nevada Judgment [ 5 ] GTG is a law firm with an office in Nevada.

In January 2018, GTG was retained by USA Dawgs, Inc. [USA Dawgs] to represent it in bankruptcy proceedings in the Nevada Court. Double Diamond, which marketed Dawgs brand footwear in Canada, guaranteed payment of the fees and expenses that might become owing to GTG by USA Dawgs. One of the terms of that guarantee was that it was to be “interpreted and enforced in accordance with the laws of the State of Nevada”.

Another term was that any “lawsuit, action or proceeding arising out of or relating to [that] agreement shall only be instituted in a federal or state court located in Nevada”. [ 6 ] On January 31, 2018, GTG filed

Chapter 11 bankruptcy proceedings in the Nevada Court on behalf of USA Dawgs [Nevada Proceedings]. Double Diamond was represented by legal counsel and participated in the proceedings. Later in those proceedings, GTG brought an application for the allowance of compensation for professional services rendered and reimbursement of expenses incurred in its representation of USA Dawgs in the Nevada Proceedings [Nevada Application]. In that context, it also sought judgment against Double Diamond. [ 7 ] On August 21, 2018, the Nevada Court granted the Nevada judgment awarding GTG “on a final basis professional compensation for actual, necessary services rendered in the

Chapter 11 Case in the amount of $418,609.00, and the reimbursement of actual, necessary expenses incurred in the amount of $31,819.09, for a total of $450,428.09 [USD] (the ‘Allowed Fees and Costs’)”. The Nevada Court further ordered that USA Dawgs and Double Diamond “are jointly and severally liable for the payment of the Allowed Fees and Costs to GTG”. This finding constitutes the judgment against it. B. Registration application [ 8 ] On December 20, 2018, GTG applied to the Saskatchewan Court of Queen’s Bench for an order “recognizing” the Nevada judgment. In support of its application, GTG filed the affidavit of one of its partners, Talitha Gray Kozlowski.

[ 9 ] Ms. Gray Kozlowski’s affidavit briefly summarized the terms of Double Diamond’s guarantee and the proceedings before the Nevada Court. She explained that both USA Dawgs and Double Diamond “had legal counsel in respect of the Nevada Proceedings, were served with the Nevada Application, and participated in the Nevada Proceedings”. Her affidavit also stated that neither USA Dawgs nor Double Diamond “have appealed the Nevada Order and the 14 day deadline for appealing the Nevada Order has passed”. Finally, her affidavit explained that all but $25,178.03 USD of the original judgment amount remained unpaid.

Double Diamond questioned Ms. Gray Kozlowski on her affidavit. A transcript of the cross-examination of Ms. Gray Kozlowski forms part of the record. [ 10 ] In response, Double Diamond relied on two affidavits of Steven Mann (the chief executive officer and president of Double Diamond, and the past president of USA Dawgs) and filed an application for an order to allow it to continue the questioning of Ms. Gray Kozlowski. [ 11 ] In his first affidavit, Mr. Mann provided background to the Nevada Proceedings.

He acknowledged that he signed the agreements containing the guarantee of GTG’s fees on behalf of both USA Dawgs and Double Diamond. [ 12 ] Mr. Mann commented on the contents of various filings with the Nevada Court. He stated that he understood that Double Diamond was providing a guarantee. Although he is not a lawyer, he described the assertion made by Ms. Gray Kozlowski that Double Diamond was “jointly and severally liable” with USA Dawgs for the payment of GTG’s fees, expenses and costs as being “patently false” and a “misrepresentation”.

He explained that he “understand[s] the differences between a guaranty contract and a contract of joint and several liability and that Double Diamond had a guaranty contract with GTG only”. Mr. Mann also set out his understanding of law that was applicable to the Nevada Proceedings in general, and to the Nevada Application in particular, reciting details of case law and various statutory provisions, as well as stating his conclusion that the Nevada Court “did not have jurisdiction over Double Diamond”. Mr. Mann stated that Ms.

Gray Kozlowski and GTG “had to know that it was improper … to obtain an invalid and void order against Double Diamond in attempt to extort fees, costs and expenses from it and to perpetrate a fraud upon this court in an attempt to enforce an invalid and void order of [ sic ] court”. [ 13 ] Mr. Mann observed that “under the guaranty contract, GTG has not made a demand upon Double Diamond”.

He further stated that “the contract that GTG and Double Diamond entered into is also considered to be a surety contract to which GTG owes Double Diamond the obligation to seek payment from other legal sources before it can seek payment from Double Diamond”, which he claimed had not been done. [ 14 ] Finally, Mr. Mann expressed his understanding that, at least as of the date of his affidavit, Double Diamond had the ability to appeal the Nevada judgment or to apply for a reconsideration of it: 62.

Finally, I understand that pursuant to United States of America Federal Rules of Civil Procedure, Rules 52, 58, 59 and 60, Federal Rule of Appellate Procedure, Rule 4, as well as the applicable Bankruptcy Rules of Civil Procedure, 7052 and 7058, Double Diamond has the ability to file an appeal and/or motion for reconsideration of the Order of Judge Barbero of Nevada within one year of the date of the Order and further, since the appropriate procedures were not followed, the appeal time has not yet started to run, and once it does, Double Diamond will have either 14 or 28 days within which to make the applicable motions related to an appeal.

Attached as Exhibit “B” to this my Affidavit is a copy of the relevant portions of the Federal Court Rules and Statutes. [ 15 ] Mr. Mann’s second affidavit related to Ms. Gray Kozlowski’s failure to provide answers to undertakings given at her questioning. This is not an issue in this appeal. C. The Chambers Decision [ 16 ] The Chambers judge considered, and rejected, four arguments made by Double Diamond in opposition to GTG’s application, namely that: (a) “insomuch as the within application arises out of bankruptcy and insolvency proceedings, as defined in

Part XIII of the Bankruptcy and Insolvency Act , RSC 1985, c B-3 , the within application is a nullity, pursuant to s. 3 (

b) of the EFJA ” (at para 25); (b) “GTG has failed to demonstrate that the appeal period applicable to the Nevada Order has expired”; (c) “the Nevada court lacked jurisdiction to make an order against it in the Nevada Proceedings”; and (

d) the Nevada judgment “was obtained through fraud” (at para 26). Double Diamond does not allege error by the Chambers judge with respect to the first and fourth of these issues. I will, therefore, focus my review of the Chambers Decision on the Chambers judge’s treatment of the second and third of these arguments only. [ 17 ] In respect of the appeal period issue, the Chambers judge acknowledged Double Diamond’s submission that “it falls to GTG, as the applicant, to prove that the relevant appeal period has elapsed” (at para 28).

He noted that proof of Nevada law, “including the law pertaining to the applicable appeal period and the finality of the Nevada Order is governed by s. 4 ” of The Evidence Act, SS 2006, c E- 11.2 [ Evidence Act ] (at para 29). He observed that “Mr. Mann is not a lawyer, and is not qualified to give an expert opinion in this respect” (at para 32). He determined that the “only admissible expert evidence pertaining to Nevada law filed in these proceedings resides in the affidavit of Talitha Gray Kozlowski, a lawyer and partner with GTG” (at para 33).

He then stated that her evidence that the Nevada judgment is a final order and that the appeal period has elapsed “is uncontroverted”. He also concluded that “the fact that she is a partner with the applicant, GTG does not, in and of itself disqualify her from providing an expert opinion” (at para 35). [ 18 ] The Chambers judge concluded that, since neither Double Diamond nor USA Dawgs had sought to appeal the Nevada judgment, the claims that the Nevada Court lacked jurisdiction and that the Nevada judgment was the product of fraud, “constitute an attempt to mount a collateral attack on the same” (at para 37).

II. ISSUES [ 19 ] Double Diamond’s notice of appeal refers to 38 separate grounds. In its oral argument, it reduced these grounds to two assertions, which when converted into questions are as follows: (

a) Did the Chambers judge err by failing to find that the Nevada Court lacked jurisdiction to grant the Nevada judgment ?

(

b) Did the Chambers judge err by registering the Nevada judgment without admissible evidence that the period for an appeal from the judgment had expired? III. ANALYSIS A. Did the Chambers judge err by failing to find that the Nevada Court lacked jurisdiction to grant the Nevada judgment? [ 20 ] Double Diamond argues that, pursuant to applicable United States laws, the Nevada Court did not have the authority to grant a judgment on its guarantee. It says that while the Nevada Court had “jurisdiction over the Dawgs Bankruptcy Estate pursuant to 11 U.S. Code §§ 157(b)(1) and (2)(

B) to issue an order against it as to an administrative claim for the allowance of compensation and fees to be paid from the Dawgs Bankruptcy Estate to GTG … the [Nevada Court] was without jurisdiction to use these same sections and rules against Double Diamond”. It also argued that the Nevada Court “was without constitutional authority to render an order and/or judgment against Double Diamond as a non-debtor who did not consent to the jurisdiction of the [Nevada Court]”. [ 21 ] Under the EFJA , a foreign judgment creditor wishing to enforce its judgment in Saskatchewan may seek its registration in this province.

Once registered, “a foreign judgment is enforceable as if it were a judgment of [the Court of Queen’s Bench]” (s. 14(1)). [ 22 ] For a foreign judgment to be registerable under the EFJA , the foreign court must have had jurisdiction, as that term is defined in the EFJA , to grant it. In this regard, s. 8 sets out six circumstances in which a foreign court has jurisdiction for the purposes of the EFJA : Jurisdiction 8 A court in the state of origin has jurisdiction in a civil proceeding that is brought against a person if: (

a) the person expressly agreed to submit to the jurisdiction of the court; (

b) as defendant, the person submitted to the jurisdiction of the court by appearing voluntarily; (

c) the person commenced a counterclaim to the proceeding; (

d) the person, being an individual, was ordinarily resident in the state of origin; (

e) the person, not being an individual, was incorporated in the state of origin, exercised its central management in that state or had its principal place of business located in that state; or (

f) there was a real and substantial connection between the state of origin and the facts on which the proceeding was based. [ 23 ] I note, for completeness, that ss. 9 and 10 also bear on the question of real and substantial connection but do not come into play in this appeal. [ 24 ] To obtain registration, the foreign judgment creditor must give notice to the judgment debtor of its intention to do so. Rule 10- 51(1)(

d) of The Queen’s Bench Rules makes those rules applicable to all proceedings taken under the EFJA , thereby requiring that a request for registration proceed by way of originating application, in accordance with Rules 3-2(4)(

b) and 3-49(3). The notice given to the judgment debtor must include the specific basis upon which the judgment creditor grounds the jurisdiction of the foreign court. This requirement is set out in s. 12(3) of the EFJA , which provides as follows: 12

(3) The judgment creditor must give to the judgment debtor a notice of intention to register a foreign judgment with respect to one or more of its parts: (

a) indicating which of the grounds set out in

section 8 are being relied on to claim that the court in the state of origin had jurisdiction to make the foreign judgment; and (

b) identifying the parts. [ 25 ] In its originating application, GTG asserted, as a jurisdictional ground, that Double Diamond had been “validly served with the Nevada Application, retained legal counsel in respect of the Nevada Proceedings, and [had] participated in the Nevada Proceedings” (emphasis added). The originating application further stated that “[i]n doing so, [Double Diamond] attorned to the jurisdiction of the Nevada Proceedings [ sic ]”. As I would interpret them, these statements amount to an assertion that the Nevada Court had jurisdiction pursuant to s. 8 (

b) of the EFJA . Evidence of these circumstances was then provided through Ms. Gray Kozlowski’s affidavit. [ 26 ] Ms. Gray Kozlowski’s evidence on this point was not directly disputed by Mr. Mann in his affidavits. Double Diamond also pointed to nothing from her cross-examination that would contradict her evidence in relation to this issue. In oral argument, Double Diamond’s counsel referred us only to the following three paragraphs from Mr. Mann’s affidavit as bearing on its jurisdictional arguments: 30.

In [the Nevada] Application, GTG did not set forth that Double Diamond consented to the jurisdiction of the [Nevada] Court. … 52. As such, as I understand it, the [Nevada] Court did not have jurisdiction over Double Diamond pursuant to 11 U.S. Code §§ 157(b)(1) and (2)(

B) to issue any orders against Double Diamond as an administrative claim as to the allowance of compensation and fees against the Dawgs Estate pursuant to 11 U.S. Code §§ 330 and 331 and Rule 2016. See David & Hagner , P.C. v. DHP, Inc. , 171 B.R. 429 , 435–37

(D.D.C. 1994), aff’d , 70 F.3d 637 (D.C. Cir. 1995) ; In re ThreeStrands by Grace, LLC , No. 12-00756-JKC-11, 2012 WL 1986434, at *6 (Bankr. S.D. Ind. June 1, 2012); Barron v. Countryman , 432 F.3d 590 , 595 (5th Cir. 2005); and, In re AB & C Grp., Inc. , 411 B.R. 284 , 290–91 (Bankr. N.D.W. Va. 2009). 53.

Further, Double Diamond did not consent to final orders or judgments against it in the [Nevada] Court. [ 27 ] However, this evidence says nothing about Double Diamond’s submission by voluntary appearance to the jurisdiction of the Nevada Court. [ 28 ] In its oral submissions, Double Diamond observed that the Nevada judgment did not expressly say that it appeared at the application at which the judgment was granted. However, appearance at the hearing of the application is not required by s. 8 of the EFJA . Instead, what is required is voluntary appearance in the proceedings.

The evidence is that this requirement was met in the circumstances of this case. [ 29 ] Double Diamond’s arguments under this head are premised on a misunderstanding of the types of jurisdictional issues that are relevant to the enforcement of a foreign judgment under the EFJA . The question as to whether, under United States laws applicable in the Nevada Proceedings, the Nevada Court should have granted judgment against Double Diamond is a matter to be dealt with by courts in the United States.

It is not a proper matter of inquiry by a judge of the Court of Queen’s Bench when considering if the prerequisites for the registration of a foreign judgment under the EFJA have been met. This conclusion follows from the nature or character of an application to register a foreign judgment under the Act. [ 30 ] Canadian law has long provided processes for the recognition and enforcement of foreign judgments. Historically, this was by way of an action suing on the foreign judgment.

The limited focus of such an action at common law was explained by Deschamps J. in Pro Swing Inc. v Elta Golf Inc. , 2006 SCC 52 , [2006] 2 SCR 612 [ Pro Swing ]: II. Traditional Common Law Rule [10] The traditional common law rule is clear and simple. In order to be recognizable and enforceable, a foreign judgment must be “(

a) for a debt, or definite sum of money (not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty); and (

b) final and conclusive, but not otherwise” ( Dicey and Morris on the Conflict of Laws (13th ed. 2000), vol. 1, Rule 35, at pp. 474-75 (footnotes omitted)). Similarly, J.-G. Castel and J. Walker, in Canadian Conflict of Laws (6th ed. (loose-leaf)), at para. 14.6, state that “[a] foreign judgment in personam given by a court of competent jurisdiction is enforceable provided that it is final and conclusive, and for a definite sum of money.” [11] 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. Professor Vaughan Black explains the consequences of the recognition and enforcement of a money judgment at common law in “Enforcement of Foreign Nonmoney Judgments: Pro Swing v. Elta ” (2006), 42 Can. Bus.

L.J. 81, at p. 89: That is, [the Canadian court] always uses its own rules on such matters as the availability of garnishment, the effect of garnishment on employment, the effect of a payment into court, the date of conversion from a foreign currency into the local money, and the proper procedures for seizure and attachment. Likewise, even when enforcing a money judgment from [a foreign court, the Canadian court] employs its own exemptions legislation, its own rules for controlling competition among judgment creditors, and its own rules on post- judgment interest.

In short, when a Canadian court recognizes a foreign judgment that says that the defendant must pay the plaintiff a sum of money, that foreign judgment is simply evidence of a debt.

The recognizing court goes about collection (or limiting collection) of that debt in its own way. [Emphasis in original.] [ 31 ] Justice Deschamps added, with reference to Beals v Saldanha , 2003 SCC 72 , [2003] 3 SCR 416 [ Beals ], that “absent evidence of fraud or of a violation of natural justice or of public policy, the enforcing court is not interested in the substantive or procedural law of the foreign jurisdiction in which the judgment sought to be enforced domestically was rendered” (at para 12).

It is for this reason that “un der the traditional common law rule, the recognition and enforcement of a money judgment does not require an

interpretation of the foreign law, nor does it reach deeply into the structure of the domestic court’s justice system, since the money obligation created by the foreign judgment is sufficient evidence to enforce it in the Canadian justice system” (at para 13). Chief Justice McLachlin made a similar point in her dissent in Pro Swing , when she observed that “[b]arring 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” (at para 77).

This passage from McLachlin C.J.C.’s judgment was quoted with approval by Gascon J. in Chevron Corporation v Yaiguaje , 2015 SCC 42 at para 43 , [2015] 3 SCR 69 [ Chevron ]. [ 32 ] Prior to the passage of the EFJA , foreign judgments were enforced in this province by way of action pursuant to The Foreign Judgments Act , RSS 1978, c F-18 (repealed) [ FJA ]. The FJA specified when a foreign court had jurisdiction, provided that a foreign judgment was conclusive and set out defences to an action on a foreign judgment.

It reflected the same limited and specific focus as the common law rule described in Pro Swing . [ 33 ] The EFJA removed the need for a party that has obtained a judgment in a foreign jurisdiction to bring a separate action to enforce it.

However, it did not change the basic tenets applicable to the enforcement of a foreign judgment in this province. [ 34 ] The limited types of inquiries that a Saskatchewan court can make relating to the substantive and procedural laws on which a foreign judgment is based are set out in s. 4 of the EFJA , which provides as follows: Reasons for refusal 4 A foreign judgment cannot be enforced in Saskatchewan if: (

a) the court of the state of origin lacked jurisdiction over the judgment debtor or subject-matter contrary to sections 8 and 9;

(

b) the judgment has been satisfied; (

c) the judgment is not enforceable in the state of origin or an appeal is pending, or the time within which an appeal may be made or leavefor appeal requested has not expired; (

d) the judgment debtor was not lawfully served in accordance with the laws of the state of origin or did not receive notice of thecommencement of the proceeding in sufficient time to present a defence, and the judgment was allowed by default; (

e) the judgment was obtained by fraud; (

f) the judgment was rendered in a proceeding that was conducted contrary to the principles of procedural fairness and natural justice; (

g) the judgment is manifestly contrary to public policy in Saskatchewan; or (

h) at the time the judgment was submitted for registration or an action for enforcement was commenced, a civil proceeding based on thesame facts and having the same purpose: (

i) was pending before a court in Saskatchewan, having been commenced before the civil proceeding that gave rise to the foreignjudgment was commenced; (ii) has resulted in a judgment or order rendered by a court in Saskatchewan; or (iii) has resulted in a judgment or order rendered by a court of a foreign state, other than the state of origin, that meets the conditions for itsregistration and enforcement in Saskatchewan. [35] As can be seen, and by way of example, pursuant to s. 4(c), a foreign judgment cannot be enforced if “an appeal may be madeor leave for appeal requested has not expired”.

Pursuant to s. 4(d), a foreign judgment cannot be enforced if “the judgment debtor was notlawfully served in accordance with the laws of the state of origin”. It is by statutory proscription that the Saskatchewan court, when askedto register a foreign judgment, can inquire into these matters of foreign law.

Jurisdictional issues are limited to those specified in ss. 8 and9. [36] The fundamental reason why a Saskatchewan court asked to register a foreign judgment does not have broad-based authority toinquire into the details of the substantive and procedural law on which that judgment is based is because of the nature of the obligation itis being called to enforce. In Chevron, Gascon J. explained that an action on a foreign judgment was “based not on the original claim theplaintiff had pursued against the defendant but rather on the obligation created by the foreign judgment” (at para 43, quoting from StephenG.A.

Pitel and Nicholas S. Rafferty, Conflict of Laws (Toronto: Irwin Law, 2010) at 159). This explains why “the purpose of an action forrecognition and enforcement is not to evaluate the underlying claim that gave rise to the original dispute, but rather to assist in enforcingan already-adjudicated obligation” (Chevron at para 44).

For this reason, “the facts underlying the original judgment are irrelevant, exceptinsofar as they relate to potential defences to enforcement” (at para 45). [37] In Britton v Simon (Estate), 2016 SKQB 30, [2016] 6 WWR 133 [Britton], Kalmakoff J. (as he then was) quoted from Chevronand Beals and observed that, while they refer to enforcement and recognition proceedings at common law, the same principles, “includingthe principle of comity, are fully incorporated in the EFJA” (at para 24).

I agree. [38] Because the enforcing court’s focus is not on the substantive or procedural law on which the Nevada judgment is based, thearguments made by Double Diamond in this Court and in the Court of Queen’s Bench had no place in the analysis as to whether thatjudgment should be registered in this province.

It appears that, in substance, the Chambers judge sought to express this central principle offoreign judgments enforcement when he stated that Double Diamond’s arguments amounted to a collateral attack on the Nevada judgment. [39] The question in Moses v Shore Boat Builders Ltd., (BC CA), [1994] 1 WWR 112 (BCCA), was whether adefault Alaska judgment should be recognized in British Columbia. Among the arguments raised by the judgment debtor was that therehad been improper service of process under Alaska law.

The reasons given by the British Columbia Court of Appeal for rejecting thisargument resonate in the present case: [46] Secondly, even if the appellant were correct on the facts, it is no defence to say that the service of process did not accord withAlaska law.

Castel, Canadian Conflict of Laws (2nd ed.) puts the principle as follows at para. 151: Provided that the foreign court had jurisdiction to pronounce a judgment in personam according to provincial conflict of laws rulespreviously mentioned, in principle, it is immaterial to the recognition or enforcement of the foreign judgment in the province that theforeign court lacked authority by the law of its own sovereign to adjudicate concerning the cause of action or subject matter that resultedin the alleged judgment or concerning the person of the alleged judgment debtor. [47] The opinion of the editors of Dicey and Morris on the Conflict of Laws, 11th ed. (1987) at p. 464, is to the same effect:

(2) A foreign judgment cannot, in general, be impeached on the ground that the court which gave it was not competent to do so accordingto the law of the foreign country concerned. [40] A very similar argument to that made by Double Diamond was raised and was rejected in Stern Estate v Solehdin, 2011 ONCA286, 75 CBR (5th) 69 [Stern Estate]. In that case, the respondents were awarded

summary judgment in the Louisiana Bankruptcy Courtagainst the appellants on their personal guarantees in support of a loan to a company in Louisiana that subsequently went bankrupt. Therespondents applied to have those judgments recognized and enforced in Ontario. The appellants did not dispute that there was a real andsubstantial connection to Louisiana. Instead, they argued that the Louisiana Bankruptcy Court lacked subject matter jurisdiction to decidethe issue of whether the guarantors were liable on their guarantees and that that issue should have been decided in the Louisiana StateCourt.

They also argued that, on the state of the existing law, the originating court must have jurisdiction and that, as a matter of generalprinciple, the enforcing court must inquire into the originating court’s jurisdiction over the subject matter. These arguments were rejected

in single paragraph of the per curiam judgment of the Ontario Court of Appeal, which stated as follows: [3] Having regard to the fact that the appellants participated in the Louisiana proceedings, specifically raised the issue of the Louisiana Bankruptcy Court’s subject matter jurisdiction, and failed to appeal the Louisiana Bankruptcy Court’s determination that it had subject matter jurisdiction, we are of the opinion that it was not open to the appellants to re-litigate the issue of subject matter jurisdiction in Ontario. [ 41 ] In one respect, the facts in Stern Estate were different than those here.

There, the judgment debtor opposing the registration of the foreign judgment had specifically raised the issue of the jurisdiction before the foreign court. However, in my respectful view, this distinction makes no difference. Rather, based on the authorities I have reviewed, I am satisfied that if there is validity to Double Diamond’s substantive or procedural concerns as to the scope of the authority of the Nevada Court, those concerns are properly raised in that forum, not in opposition to GTG’s request to register the Nevada judgment in this province.

Somewhat ironically, if Double Diamond is correct and it had (contrary to the evidence of Ms. Gray Kozlowski) the ability to appeal the Nevada judgment or to apply for a reconsideration of it in that jurisdiction, there is, or at least was, an obvious and ready forum in which to raise its arguments on this point. [ 42 ] For these reasons, I am unable to accept Double Diamond’s argument that the Nevada judgment should not have been recognized because, under applicable foreign laws, the Nevada Court allegedly did not have the jurisdiction or authority to grant judgment against it. B.

Did the Chambers judge err by registering the Nevada judgment without admissible evidence that the period for an appeal from the judgment had expired? [ 43 ] Double Diamond’s second argument, and the one it emphasizes, starts with the observation that, if it has a right to appeal the Nevada judgment, it cannot be enforced in this province. This submission is based on s. 4 (

c) of the EFJA , quoted earlier. [ 44 ] Double Diamond says that it was incumbent on GTG to prove that the time for appealing the Nevada judgment had expired. It points out that the Chambers judge recognized – properly it says – that the foreign law relating to the applicable appeal period could only be proven through the evidence of a properly qualified expert . It argues that there is no admissible evidence that the Nevada appeal period had expired. In this regard, it says that the Chambers judge should not have admitted Ms. Gray Kozlowski’s affidavit as expert evidence.

It complains that it had no notice that Ms. Gray Kozlowski’s affidavit would be considered as expert evidence by the Chambers judge. Finally, it says that Ms. Gray Kozlowski should not have been qualified as an expert because of her personal stake in the outcome of the application for registration of the Nevada judgment. [ 45 ] I agree with many of Double Diamond’s points, but not with the conclusion that the Nevada judgment should not have been accepted for registration. I will explain. 1.

Admissible expert evidence was required to prove the Nevada appeal period [ 46 ] First, I have no difficulty accepting Double Diamond’s assertion that, absent the agreement of the parties, the foreign law relating to the period applicable to an appeal of the Nevada judgment could only be proven through the evidence of a properly qualified expert. This is mandated by s. 4(3) of the Evidence Act , which provides as follows: 4

(3) In determining a law of a jurisdiction outside of Canada, a judge shall consider only the evidence adduced by qualified expert witnesses, whether legal practitioners or not, except if the parties agree otherwise. [ 47 ] This uncontroversial point appears to have been accepted by the Chambers judge, who stated that proof of Nevada law, “including the law pertaining to the applicable appeal period and the finality of the Nevada Order is governed by s. 4 of [the Evidence Act ]” (at para 29). The Chambers judge then quoted s. 4 in its entirety.

If this stood alone, it might call into question whether he was referring to s. 4(3) or some other part of s. 4. However, immediately after the Chambers judge’s general reference to s. 4 he turned to Alternatifbank A.S. v Arslan , 2016 SKQB 106 [ Alternatifbank ] , which he identified as discussing “admissibility and weight to be afforded the expert opinion of a party’s legal counsel” (at para 30).

The Chambers judge also quoted at length from Arslan v Şekerbank T.A.Ş. , 2016 SKCA 77 , 400 DLR (4th) 193 [ Arslan CA ] , which discusses the admissibility and weighing of expert evidence given by a party’s counsel in the context of an application to register a foreign judgment under the EFJA . Based on all of this, I am confident that the Chambers judge understood that proof of the applicable appeal period required admissible expert opinion evidence . [ 48 ] Second, I can also agree with Double Diamond that it was entitled to notice of GTG’s intention to rely on Ms.

Gray Kozlowski’s affidavit as providing expert opinion evidence. This is a basic requirement of procedural fairness. In making this statement, I am aware that there is no requirement in The Queen’s Bench Rules for notice of this kind in the context of a Chambers application. This stands in contrast to the notice requirements applicable when a party intends to use expert evidence at trial mandated by Rule 5-40. However, in this case notice was given; the reply brief filed by GTG in the Court of Queen’s Bench makes clear its intention to rely on Ms. Gray Kozlowski’s evidence to prove this issue.

The same brief also points out that Double Diamond “could have sought advice and lead evidence from Nevada counsel on this point”. All of this, in my view, was sufficient to alert Double Diamond that GTG was relying on Ms. Gray Kozlowski’s affidavit to prove the applicable appeal period. This form of notice did not expressly state that the affidavit was offered as expert opinion evidence.

However, I am prepared to proceed on the basis that it was understood by Double Diamond as such, given the objections it raised to the sufficiency of the affidavit on this point. [ 49 ] Third, I agree that the Chambers judge was required to evaluate Ms. Gray Kozlowski’s evidence by applying the principles governing the admissibility of expert evidence.

Although The Queen’s Bench Rules do not prescribe notice or requirements for the admission of expert testimony led at Chambers applications, the case law in this province is consistent that when proposed expert testimony is tendered for use in an application, the same common law threshold requirements for the admission of such testimony apply. Alternatifbank at paragraphs 12–13 and Arslan CA at paragraphs 38–48 illustrate this principle.

2. Ms. Gray Kozlowski’s evidence was not admissible expert evidence [50] Double Diamond’s principal argument is that Ms. Gray Kozlowski should not have been qualified as an expert because of herpersonal stake in the outcome of the application for registration of the Nevada judgment. [51] Among the threshold requirements for the admission of expert testimony, at trial or in a Chambers application, is that an expertwho proffers opinion evidence must be impartial, independent and free from bias.

As explained in White Burgess Langille Inman v Abbottand Haliburton Co., 2015 SCC 23 at para 45, [2015] 2 SCR 182 [White Burgess], an “expert’s lack of independence and impartiality goesto the admissibility of the evidence in addition to being considered in relation to the weight to be given to the evidence if admitted”.Situated in the framework established in R v Mohan, (SCC), [1994] 2 SCR 9, a proposed expert witness who is unable orunwilling to fulfill the duties owed to the court “is not properly qualified to perform the role of an expert” (White Burgess at para 53). [52] Against this background, I turn to Double Diamond’s objections to the qualification of Ms.

Gray Kozlowski as an expert andthe Chambers judge’s treatment of this issue. [53] The Chambers Decision deals with GTG’s objection to Ms. Gray Kozlowski’s qualifications in a single paragraph: [35] Her evidence in that respect is uncontroverted, and the fact that she is a partner with the applicant, GTG does not, in and of itselfdisqualify her from providing an expert opinion.

The threshold for finding a witness to be impartial, unbiased and independent is arelatively low one, and “It would only be in rare circumstances that a proposed expert’s testimony would be ruled inadmissible for failingto meet it”: R v Bookout, 2017 SKQB 41 , at para. 13. [54] White Burgess certainly supports the Chambers judge’s statement that the threshold for finding a witness to be impartial isrelatively low. However, it is not one that is devoid of meaning. The court does not proceed on the basis that an expert is independent andimpartial.

Instead, the burden of establishing this rests with the proponent of the evidence. In White Burgess, Cromwell J. rejected the ideathat an expert’s independence and impartiality should be presumed absent challenge. To be sure, he accepted that, absent a challenge onthis front, “the expert’s attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that thisthreshold is met” (at para 47). However, Ms. Gray Kozlowski did not attest that she was independent and impartial.

Indeed, it would havebeen impossible for her to do so, given her direct financial connection to the judgment creditor. These facts required the Chambers judgeto do more than simply note that the threshold for challenging independence is relatively low and it will be rare that it is not met. [55] In White Burgess, the Supreme Court recognized that, in most cases, a mere employment relationship with the party calling theevidence will be insufficient to disqualify an expert. However, it also noted that “a direct financial interest in the outcome of the litigationwill be of more concern” (at para 49).

Moreover, it emphasized that the test involves an objective assessment as to whether the expert wasnon-partisan: [50] As discussed in the English case law, the decision as to whether an expert should be permitted to give evidence despite having aninterest or connection with the litigation is a matter of fact and degree. The concept of apparent bias is not relevant to the question ofwhether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court.

When looking at an expert’s interest orrelationship with a party, the question is not whether a reasonable observer would think that the expert is not independent. The question iswhether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court toprovide fair, non-partisan and objective assistance. (Emphasis added) [56] The Chambers judge considered none of this in his analysis. He did nothing except to acknowledge Ms. Gray Kozlowski’spersonal interest and note that the qualification bar was low.

I also see nothing in the rest of the Chambers Decision that would allow meto conclude that the Chambers judge assessed her personal stake against the standard of what a reasonable observer would think. [57] As I have noted, the Chambers judge had referred earlier to Alternatifbank as addressing “the admissibility and weight to beafforded the expert opinion of a party’s legal counsel” (at para 30, emphasis added). However, Ms. Gray Kozlowski was much more thancounsel for GTG in the Nevada Proceedings.

She was a partner of GTG – the judgment creditor – and, in that capacity, had a directpecuniary interest in the outcome of the litigation. Moreover, Alternatifbank said little about whether Ms. Gray Kozlowski’s status aspartner of GTG was a reason to disqualify her as an expert. [58] The issue in Alternatifbank was whether the judgment debtor had been lawfully served in accordance with Turkish law, an issuethat was relevant to whether s. 4(

d) of the EFJA barred the registration of that judgment in this province. The applicant had filed theaffidavit of a Turkish lawyer whom the respondent described as having “little practical experience” and a “lack of expertise” (at para 11),demonstrated by her failure to refer to statutory provisions that the respondent’s expert said were relevant. The respondent filed expertevidence to say that it had not been properly served and objected to the admissibility of the contrary evidence offered by the applicant’saffiant.

Justice Barrington-Foote (as he then was) determined that, because of s. 4 of the Evidence Act¸ the question of foreign law was amatter of fact to be determined “solely on the evidence adduced by qualified expert witnesses” (at para 12). He recited the usual tests forthe admission of expert evidence.

He concluded that the applicant’s expert was “qualified to provide expert evidence in relation to the lawof Turkey” (at para 13) and the correct approach was to admit her affidavits and “to assess their weight not only in light of herqualifications and the nature of the issues, but in light of the evidence as a whole” (at para 14), including that of the expert who offered thecontrary opinion. However, there is no suggestion in the judgment that the expert whose opinion was at issue had any role other than as anexpert. The expert did not have the direct financial stake that Ms.

Gray Kozlowski has in the outcome here. She had also certified that shewas aware of and had prepared her report in conformity with Rule 5-37 of The Queen’s Bench Rules. [59] More directly relevant is Arslan CA, and the Court of Queen’s Bench decision which it affirms (Şekerbank T.A.Ş. v Arslan,2014 SKQB 215, 450 Sask R 78 [Arslan QB]). Arslan CA and Arslan QB concerned an application by a Saskatchewan party to set aside apreservation order made under The Enforcement of Money Judgments Act, SS 2010, E-9.22. Various issues of Turkish foreign law bore onthe application.

The judgment creditor, Şekerbank T.A.Ş., filed affidavits sworn by two lawyers employed by the Turkish law firmrepresenting it in that country. The judgment debtors took the position that these affiants could not be qualified as expert witnesses to give

evidence pursuant to s. 4(3) of the Evidence Act because their role as counsel rendered them partial. [ 60 ] Arslan QB pre-dated White Burgess , however, the decision, to a great degree, anticipated its outcome.

Justice Barrington-Foote (as he then was) referred to “conflicting authority as to the effect of partiality or bias on the admissibility of expert evidence” ( Arslan QB at para 12 ), but stated his agreement with a line of authorities that situated challenges to the independence and impartiality of expert witnesses as a matter to be dealt with both when qualifying experts and when assessing the weight to be given to such testimony if admitted.

He concluded that he could rely on the affidavits for limited purposes only: [18] I agree with this approach, regardless of whether bias is properly considered in the context of relevance, or in the context of necessity. The Turkish lawyers acting for the parties are advocates. Opinion evidence from a foreign lawyer who has that role relating to the cause on which he or she is retained will often be inadmissible , or if admitted, would be given no weight. However, that does not mean that the lawyers’ affidavits must be entirely excluded in this case.

I must consider the nature of the proffered evidence, and the purpose for which it is to be used. Is the opinion evidence of the Turkish lawyers acting for the plaintiffs and the defendants so tainted by bias that it is of little or no assistance, taking account of those factors? [19] It is clear that is so in some respects. There are, for example, conflicting opinions from the lawyers for the plaintiff and the defendants as to whether Turkish law required that there be spousal consent in a certain form of the guarantees signed by Mr. Arslan.

I would be very reluctant to rely on either of their opinions to decide the answer to that question. [20] It is, however, a different thing to rely on those competing opinions as evidence that the requirement for spousal consent is a legal question which must be decided by a Turkish court, as opposed to the answer to that question. Competing legal opinions may together confirm that there is an arguable point of law. That fact may be explicitly confirmed in the opinions, or may be apparent as a result of their content, including the justification and analysis the lawyer offers in support of his or her conclusion.

The competing opinions may accordingly reach different conclusions, but may agree that the issue is suitable for judicial consideration. Where the competing lawyers agree on a point of law, or agree that there is an arguable issue, the risk arising from bias, and thus the reason to exclude the evidence is, at a minimum, radically reduced.

Put differently, that evidence, if otherwise relevant, would be of assistance to the court. [ 61 ] Justice Caldwell, writing in Arslan CA , endorsed Barrington-Foote J.’s analysis: [47] In my assessment, the Chambers judge correctly identified the applicable law and approached this question in a nuanced and efficacious way, but in a way that was clearly permitted by the factors that bound the exercise of his discretion to admit the evidence (see [ White Burgess ]). Pointedly, he did not consider the inconsistent and biased evidence of Ms. Mutlugil, Dr.Öztunç and Mr.

Arikan for the purpose of establishing Turkish law (see para 18 cited above), which was fraught with the risk identified by the case law. Rather, he relied on that evidence to confirm that an arguable issue under Turkish law remained outstanding before the Turkish courts (see para 19 cited above). In his assessment, this latter use of the impugned evidence was of assistance in resolving the substantive question before him and came with a “radically reduced” risk arising from bias of the affiants.

Moreover, as the Chambers judge remarked, the various affidavits before him also contained statements of fact supported by translated versions of Turkish court documents that in turn supported his conclusion. I can see no flaw in his analysis of this issue or in his conclusion in this regard.

While his decision pre-dates [ White Burgess ], the Chambers judge’s approach to this issue is consistent with the principles espoused in that case. [48] In short, I find no error in the Chambers judge’s decision to admit the impugned evidence and to limit its use to proof of uncontroverted facts about the status of the Turkish proceedings in this case. (Emphasis in original) [ 62 ] I take from these decisions that the fact that a lawyer has served as an advocate to a party may be sufficient to disqualify that person as an expert.

In Arslan QB , Barrington-Foote J. stated that opinion evidence from a foreign lawyer who has an active role as an advocate “relating to the cause on which he or she is retained will often be inadmissible ” (at para 18, emphasis added). Justice Caldwell endorsed Barrington-Foote J.’s decision not to “consider the inconsistent and biased evidence” of the Turkish advocates on contentious issues ( Arslan CA at para 47 ).

The evidence from the advocates was admitted only to prove “uncontroverted facts about the status of the Turkish proceedings” (at para 48). [ 63 ] This understanding is confirmed in Specialist Hygiene Solutions Inc. v Marsh , 2017 SKQB 258 , 12 CPC (8th) 355 .

In that case, Barrington-Foote J. (as he then was), making reference to Arslan CA , refused to admit the opinion of an English solicitor “as that of a properly qualified expert within the meaning of ss. 4(3) [of the Evidence Act ] as he is counsel” for the party in the contested proceedings (at para 14). [ 64 ] The admissibility of expert evidence is a question of law reviewable on the correctness standard of review insofar as it concerns the proper articulation and application of the legal test.

Absent an error in principle, an appellate court owes deference to decisions of trial judges to admit or reject expert evidence: R v Chung , 2018 SKCA 70 at para 16 ; and Hess v Thomas Estate , 2019 SKCA 26 at para 30 , 433 DLR (4th) 60. In this case, in my respectful view, the Chambers judge failed to identify or properly apply the correct principles governing the admissibility of Ms. Gray Kozlowski’s evidence as expert opinion evidence. Had he done so, he would have concluded that her testimony was not admissible to prove the law of Nevada. In this case, Ms.

Gray Kozlowski was much more than counsel or a lawyer representing GTG in the Nevada Proceedings. She had a direct stake in the outcome of the proceedings. [ 65 ] In my view, Ms. Gray Kozlowski’s direct, personal, pecuniary interest in the outcome of the application disqualified her from being able to give admissible expert opinion evidence in this case. 3. The inadmissibility of Ms. Gray Kozlowski’s affidavit as expert evidence does not affect the correctness of the Chambers Decision [ 66 ] My conclusion that Ms.

Gray Kozlowski’s affidavit was not admissible expert opinion evidence does not lead inevitably to the outcome that Double Diamond urges. The premise of Double Diamond’s submission is that GTG’s application to register the Nevada judgment depended on GTG proving that the period applicable to appealing that judgment had passed.

[67] As I have noted, Double Diamond’s argument is based on s. 4(

b) of the EFJA, which provides that a “foreign judgment cannotbe enforced in Saskatchewan if … the time within which an appeal may be made or leave for appeal requested has not expired”. Thequestion that arises is whether an evidential onus rests on the judgment creditor to pre-emptively displace the existence of this bar toenforcement. If the judgment creditor carries this burden, then, in the absence of any evidence on this point, GTG’s application must fail.On the other hand, if GTG does not carry this burden, then the inadmissibility of Ms.

Gray Kozlowski’s affidavit is of no consequence atall since, in that case, the Court has nothing before it to say that the bar exists. See: Yorkton (City) v Mi-Sask Industries Ltd., 2021 SKCA43 at para 31 [Yorkton]. [68] Double Diamond refers to paragraph 36 of Beals as confirming that a judgment creditor carries the burden of establishing thatthe appeal period has expired. That case involved an action in Ontario to enforce a Florida judgment.

While at paragraph 36 of Beals,Major J. referred to the fact that the judgment creditor had failed to take advantage of a right of appeal in that case, I see nothing in thedecision that suggests that proof of this fact was a prerequisite to the enforceability of the judgment in Ontario. [69] In some jurisdictions, a party seeking to enforce a foreign judgment must provide proof of the expiration of an appeal period.For example, this appears to be the case under Quebec law and when a foreign judgment is enforced before the Federal Court.

However, inthese two contexts at least, there is an express requirement imposing this obligation. See,

article 508 of the Code of Civil Procedure,CQLR, c C-25.01, and Rules 327 and 329 of the Federal Courts Rules, SOR/98-106. More generally, see Halsbury’s Laws of Canada,Conflict of Laws (2020 Reissue) at HCF-82 under the heading “Foreign judgments not reviewable as to the merits of the decision” (at 508)and at HCF-88 under the heading “Finality” (at 532). [70] The issue is, at its heart, one of statutory

interpretation. The approach to be applied to such an analysis is set out in Rizzo &Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 [Rizzo]. The application of the modern principle from Rizzo requires apurposive analysis, having regard for the legislative scheme and the intention of the Legislature.

Section 2-10(1) of The Legislation Act,SS 2019, c L-10.2, codifies the modern principle, mandating that, in interpreting legislation, the words of

an Act are to be “read in theirentire context, and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and theintention of the Legislature”. [71] Much of the EFJA, like the FJA which it replaced, is a codification of central elements of the common law rules and is theproduct of the work of the Uniform Law Conference of Canada [ULCC].

As I have noted, one of the central reforms instituted by theEFJA was the removal of the need for a party who has obtained a judgment in a foreign jurisdiction to bring a separate action in thisprovince to enforce it, as had been required in connection with enforcement under the FJA. [72] As previously noted, a judgment creditor seeking to register a foreign judgment in this province must first give notice to thejudgment debtor of its intention to do so, including by providing notice of the specific basis upon which the judgment creditor grounds thejurisdiction of the foreign court (s. 12(3), previously quoted).

Section 12(4) of the EFJA also specifies certain filing requirements, asfollows: 12(4) A judgment creditor may register a foreign judgment by filing with the enforcing court: (

a) a copy of the foreign judgment certified as true by a proper officer of the court that made the order; (

b) a copy of the notice mentioned in subsection (3); (

c) an application to modify the foreign judgment, if the judgment creditor is of the opinion that the judgment must be amended by theenforcing court to render it enforceable; and (

d) a certified translation of the foreign judgment into either English or French, if it was not given in one of those languages. [73] None of this requires the judgment creditor to file evidence other than the documents specified in subsections (a), (

b) and (

d) insupport of a request to register a foreign judgment. [74]

Section 4 of the EFJA lists a series of matters that will render a foreign judgment unenforceable in this province. According tothe ULCC report on the enforcement of foreign judgments, with the exception of s. 4(a), s. 4 “lists in sub-par. (

b) to (

h) the traditionaldefences or exceptions which can be opposed to the enforcement of foreign final judgments in Canada” (Uniform Enforcement of ForeignJudgments Act 2003, 2003 Fredericton NB Annual Meeting Civil

Section Documents, <www.ulcc.ca> at s. 4 comments). In connectionwith s. 4(c), which is worded only slightly differently in the model legislation, the ULCC report simply states that it embodies the ideathat a foreign judgment cannot be enforced if it is not “final”. [75] The equivalent to s. 4 of the EFJA was s. 6 of the FJA, which stated as follows: Defences to action on foreign judgment 6 Where an action is brought in this province upon a foreign judgment, it is a sufficient defence: (

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

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

c) that the judgment was obtained by fraud; (

d) that the judgment is not a final judgment; (

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

(

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

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

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

i) that the proceedings in which the judgment was obtained were contrary to natural justice. [76] As can be seen, s. 6 of the FJA refers to matters that constitute a “sufficient defence” to an action on a foreign judgment. Theidea that a matter is a “defence” suggests that it is not an issue, unless raised by the party against whom the action is taken. Of course, s. 4of the EFJA refers to reasons a foreign judgment “cannot be enforced”. However, I attach no significance to this change in statutorylanguage.

The change in language is easily explained by the fact that, under the FJA, enforcement was by way of action, whereas, underthe EFJA, the initiating document is an originating application. [77] One of the issues in Britton was whether a Wisconsin judgment was unenforceable in this province pursuant to s. 4(f), becauseit was “rendered in a proceeding that was conducted contrary to the principles of procedural fairness and natural justice”.Justice Kalmakoff characterized s. 4(

f) as creating a defence, the onus of proof of which rests on the party asserting it. In reaching thisconclusion, he referred to case law that was decided outside of the specific context of the EFJA: [27] A denial of natural justice and procedural fairness can be the basis of a challenge to a foreign judgment and, if proven, will allowthe court to refuse to register or enforce the judgment. The party seeking to impugn the judgment must prove, on a balance of probabilities,that the foreign proceedings were contrary to Canadian notions of fundamental justice: Beals, at para 59.

The natural justice defence isrestricted to the procedure and due process aspects of the foreign proceeding. It does not relate to the merits of the case: Contacare Inc. vCIBA Vision Corp., 2011 ONSC 4276 [Contacare]. [78] In the same case, the judgment debtor alleged bias as an additional ground for finding a breach of procedural fairness.

Again,Kalmakoff J. cast the onus of establishing this on the party asserting this as a basis to render the foreign judgment unenforceable: [38] Therefore, whether framed as a denial of natural justice, or as a repugnant fact that would render the judgment contrary to publicpolicy, a conclusion that the judge or jury in Mr. Britton’s trial in Wisconsin were biased would require me to set aside registration of thejudgment. That said, an allegation of bias on the part of a foreign court is not to be treated lightly.

Where a party raises bias on the part ofthe foreign court as a defence to registration of a judgment - whether under the natural justice or the public policy heading - that partymust prove actual bias.

A reasonable apprehension of bias is not sufficient: Beals, at para 72; [SHN GrundstuecksverwaltungsgesellschaftMBH & Co. v Hanne, 2014 ABCA 168, 575 AR 149], at para 19; Oakwell Engineering Ltd. v Enernorth Industries Inc. (2006), (ON CA), 81 OR (3d) 288 at para 22 (Ont CA). [79] As a matter of practical efficiency, if not common sense, many of the matters listed in both s. 4 of the EFJA and s. 6 of the FJAare items that should be left to a judgment debtor to raise.

By way of example, I can identify no reason why a judgment creditor should, infirst instance at least, be required to prove that the judgment was not obtained by fraud, the judgment was rendered in a proceeding thatwas not conducted contrary to the principles of procedural fairness and natural justice, or that the judgment does not implicate principles ofpublic policy if these issues do not arise on the record already before the court. [80] One of the other differences between s. 4 of the EFJA and s. 6 of the FJA is the scope of the bar to enforceability related to thefinality of the foreign judgment.

Section 6(

d) of the FJA recognized a defence if the “judgment is not a final judgment”.

Section 4(

c) ofthe EFJA embodies a similar idea, but extends this by expressly stating that a foreign judgment cannot be enforced in Saskatchewan if thejudgment is not enforceable in the state of origin or a right of appeal continues to exist. [81]

Section 6(

d) of the FJA accorded with the common law, wherein a foreign judgment was enforceable only if it was final andconclusive. Again, at common law, a “judgment otherwise final is not the less so because it may be the subject of an appeal to a highercourt, or because an appeal is actually pending” (Jean G. Castel, Canadian Conflict of Laws, loose-leaf (Rel 82, Sept 2020) 6th ed, vol 1(Toronto: LexisNexis, 2005) at 14-37). Against this background, s. 4(

d) of the EFJA can be seen as a statutory reform, intended to enlargethe circumstances in which a foreign judgment may be said not to be final. In my view, however, this does not change the character of thebar from being that of a defence. [82] There are good practical reasons to treat s. 4(

d) as giving rise to a defence to be left to the judgment debtor to put into issue byadducing admissible evidence. Under the EFJA, the judgment debtor receives notice of the intention to enforce the judgment in thisprovince. It, therefore, is in a position to raise this issue before active enforcement steps are taken.

As Double Diamond itself hasmaintained in this appeal, because appeal rights are statutory and a matter of foreign law that must be proved by expert evidence, it is notunreasonable for the enforcing court to require the party opposing the registration to assert the existence of such rights through admissibleevidence. A judgment debtor will, or should, know if it has the right to appeal.

I have already taken note of the irony that, if DoubleDiamond is correct and it has or had the ability to appeal the Nevada judgment or to apply for a reconsideration of it in that jurisdiction, itcould well have pursued that in the forum where the merits of its dispute are intended to be considered. [83] For all these reasons, it is my conclusion that the evidential burden in relation to the non-expiration of the Nevada appeal periodfell on Double Diamond, not GTG.

As explained by Barrington-Foote J.A. in Yorkton, a “party that bears the evidential burden in relationto an issue must either adduce or point to evidence on the record that is sufficient to raise the issue” (at para 31, emphasis in original). Inthis regard, there was nothing on the record to indicate that there was an extant right of appeal and Double Diamond itself led noadmissible evidence on the point. For this reason, it was not incumbent on GTG to lead evidence in relation to the expiration of the periodfor appealing the Nevada judgment. Therefore, the fact that Ms.

Gray Kozlowski’s affidavit was not admissible on this point has noconsequence to the outcome of this appeal. 4. Section 4(4) of the Evidence Act

[ 84 ] In reaching this conclusion, I have set to one side the possibility that it was open to the Chambers judge to rely on the presumption created by s. 4(4) of the Evidence Act . That

section states that, in an action or matter, “if a foreign law is not proved, it shall be presumed to be identical to the law of Saskatchewan”. [ 85 ] Because the Chambers Decision is properly upheld for reasons unrelated to s. 4(4) , I would prefer to leave the proper

interpretation of that provision to a case where it matters to the outcome. IV. CONCLUSION [ 86 ] For these reasons, I would dismiss Double Diamond’s appeal. GTG is entitled to its costs, taxable in the usual way. “Leurer J.A.” Leurer J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. O ttenbreit J.A. I. INTRODUCTION [ 87 ] I have had the advantage of reading the reasons of my colleague and agree that this appeal should be dismissed.

However, my reasons for doing so differ from those of my colleague. [ 88 ] Double Diamond Distribution Ltd. [Double Diamond] appeals the decision of the Chambers judge in the Court of Queen’s Bench for Saskatchewan: Garman Turner Gordon LLP v Double Diamond Distribution Ltd. (11 May 2020) Regina, QBG 3578 of 2018 [ Chambers Decision ]. [ 89 ] The Chambers Decision was made pursuant to The Enforcement of Foreign Judgments Act , SS 2005, c E-9.121 [ EFJA ] and granted an order that recognized the order of the United States Bankruptcy Court for the District of Nevada [Nevada Court] dated August 21, 2018, ordering Double Diamond to pay to Garman Turner Gordon LLP [GTG] the sum of $605,825.78 CAD ($450,428.09 USD) [Nevada Order]. [ 90 ] For the reasons hereinafter set forth, I would dismiss the appeal.

II. FACTS AND BACKGROUND [ 91 ] Double Diamond marketed Dawgs brand footwear in Canada. In the United States, the footwear was marketed by USA Dawgs, Inc. [USA Dawgs]. USA Dawgs retained GTG to represent it in bankruptcy proceedings in the Nevada Court. As a condition of accepting that retainer, GTG obtained an unconditional guarantee from Double Diamond to pay its fees and disbursements arising therefrom. [ 92 ] The terms of the unconditional guarantee were set forth in an engagement letter executed by Double Diamond and USA Dawgs dated January 31, 2018 [engagement letter].

The provisions therein that are germane to this appeal are as follows: … The terms in this letter (“Engagement Letter”) together with the Standard Terms of Representation attached hereto as Exhibit A will describe the basis on which the Firm will provide the legal services. As we have discussed, the Firm’s client in this Matter will be USA Dawgs, Inc. (“you,” “your,” or the “Client”) whose address is provided above. Subject to the Firm’s approval of the engagement on the Matter and the receipt of any retainer required hereby, the Firm will be engaged to represent you in connection with a

chapter 11 bankruptcy filing (the “Matter”). Prior to commencement, we will require that you provide us with a Ten Thousand Dollar ($10,000) retainer. Double Diamond Distribution Ltd. (“Double Diamond”) guarantees payment of all fees and expenses incurred in the Matter, and, through its signature on this Engagement Letter, agrees to such guarantee and further agrees to pay, commencing February 10, 2018 and on the first day of every month thereafter, Ten Thousand Dollars ($10,000) to GTG to be held in retainer and applied to fees and expenses incurred as appropriate.

To the extent any payment made by You is not honored, Double Diamond agrees to reimburse GTG within twenty-four hours’ notice of such amounts. … [ 93 ] The germane provisions of the standard terms of representation attached as Exhibit A to the engagement letter read as follows: Billing Arrangements and Terms of Payment … You agree to pay the fees, costs and expenses related to preservation and pursuit of the Firm’s claims against you and collecting the debt, including court costs, filing fees, and reasonable attorney fees and costs.

Client and the Firm acknowledge that in the event the Firm is retained as legal counsel for a debtor-in-possession under the Bankruptcy Code, the award of legal fees, costs and expenses is subject to award and review by the United States Bankruptcy Court. …

Retainers and Minimum Fees can be paid with cash, check, cashier check, credit card or by wire transfer. If you chose [ sic ] to wire the funds our bank information is ZB, N.A., dba Nevada State Bank, 750 East Warm Springs Road, Las Vegas, Nevada 89119; account information is GTG LLP, […]. … Governing Law and Rules of Professional Conduct The Engagement Letter shall be interpreted and enforced in accordance with the laws of the State of Nevada, as amended from time to time.

The Firm’s services shall be governed by the Rules of Professional Conduct as adopted by the Nevada Supreme Court, as amended from time to time, without regard to where the services are actually performed.

Any lawsuit, action or proceeding arising out of or relating to this agreement shall only be instituted in a federal or state court located in Nevada. … [ 94 ] In July of 2018, GTG applied to the Nevada Court for an order approving the amount of its allowance of compensation for professional services rendered and reimbursement of expenses incurred in the representation of USA Dawgs [Nevada Proceedings] and fees and disbursements pursuant to the engagement letter.

The application was brought pursuant to ss. 105 and 330 of Title 11 of the United States Code, 11 USC §§ 101, et seq. [Bankruptcy Code] and Rules 2002 and 2016 of the Federal Rules of Bankruptcy Procedure. Filed in support of the application was the uncontroverted declaration of Talitha Gray Kozlowski. On hearing the application, the court granted the Nevada Order. [ 95 ] The salient terms of the Nevada Order for the purposes of this appeal are as follows: (

a) The Nevada Court’s findings of fact and conclusions of law stated therein were made pursuant to Bankruptcy Rules 7052 and 9014. (

b) The Nevada Court had jurisdiction to consider the application under 28 USC §§ 157 and 1334. The matter was a core proceeding under 28 USC § 157(

b) and the venue of the case and the application in that district was proper under 28 USC §§ 1408 and 1409. (

c) The certificate of service filed with the Court was evidence that: (i) “due, proper, timely, adequate, and sufficient notice of the Application had been provided to [USA Dawgs], [its] principals, [its] proposed counsel in the

Chapter 11 Case (the law firm of Larson Zirzow & Kaplan), [Double Diamond], Double Diamond’s president and CEO, Double Diamond’s counsel appearing in the

Chapter 11 Case (the Law firms of Danning, Gill, Diamond & Kollitz, LLP and Sullivan Hill Lewin Rez & Engel), and all other persons and entities entitled to notice in accordance with Sections 105 and 330 of the Bankruptcy Code and Bankruptcy Rules 2002”; (ii) such notice was good, sufficient, and appropriate under the circumstances; and (iii) no other or further notice of the application was required. (

d) A reasonable opportunity to object and to be heard with respect to the application and the relief requested therein had been given to USA Dawgs, Double Diamond, the Office of the United States Trustee and all other interested persons and entities. (

e) Through its execution of the engagement letter, Double Diamond unconditionally guaranteed the payment of all fees and expenses incurred by GTG in its representation of USA Dawgs in the bankruptcy proceedings. (

f) Pursuant to the terms of the engagement letter, USA Dawgs and Double Diamond were jointly and severally liable for payment of the allowed fees and costs to GTG. (

g) GTG’s requested fees of $418,609.00 USD were reasonable compensation for the actual, necessary services rendered. (

h) The application was granted and approved pursuant to s. 330 of the Bankruptcy Code. (

i) GTG was awarded, on a final basis, professional compensation for actual, necessary services rendered in the bankruptcy proceedings in the amount of $418,609.00 USD and reimbursement of actual, necessary expenses incurred in the amount of $31,819.09 USD, for a total of $450,428.09 USD. (

j) USA Dawgs and Double Diamond were jointly and severally liable for the payment of the allowed fees and costs to GTG. [ 96 ] Neither USA Dawgs nor Double Diamond paid any money to GTG, as required under the Nevada Order, other than the sum of $25,178.03 USD, which was held by GTG as a retainer and applied to the balance due under the Nevada Order. III. THE CHAMBERS DECISION [ 97 ] GTG applied to have the Nevada Order recognized in Saskatchewan. It filed and relied on the affidavit of Ms. Gray Kozlowski, who was one of GTG’s partners.

Later, Double Diamond also brought its own application for a continuation of previous cross-examination of Ms. Gray Kozlowski on her affidavit. [ 98 ] The Chambers judge first reviewed the germane provisions of the EFJA and the case law governing the enforcement of foreign judgments in Saskatchewan.

[ 99 ] The Chambers judge made the following relevant factual findings: (

a) The Nevada Order had not been satisfied apart from the sum of $25,178.03 USD, which had been held by GTG as a retainer and was applied to the balance due to GTG; (

b) Ms. Gray Kozlowski was a lawyer and partner with GTG; (

c) Double Diamond received notice of and, in fact, participated in, the bankruptcy proceedings; (

d) The Nevada Order was a final order; (

e) Neither USA Dawgs nor Double Diamond had appealed the Nevada Order; (

f) The 14-day deadline to appeal the Nevada Order had elapsed; (

g) Double Diamond had agreed to guarantee GTG’s fees and expenses incurred in representing USA Dawgs, and that it executed a written engagement letter to that effect; and (

h) The engagement letter explicitly provided that it would be interpreted and enforced in accordance with the laws of the State of Nevada, which would have exclusive jurisdiction in respect of any action, proceeding or law instituted in respect of the same. [ 100 ] The Chambers judge acknowledged the various submissions of Double Diamond that the application should be dismissed. These included that: (

a) insofar as it arose out of bankruptcy and insolvency proceedings (as defined in

Part XIII of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 ) the application was a nullity pursuant to s. 3 (

b) of the EFJA ; (

b) the Nevada Court lacked jurisdiction to make the Nevada Order; (

c) GTG had failed to demonstrate the appeal period applicable to the Nevada Order had expired; and (

d) the Nevada Order was obtained by fraud and that Ms. Gray Kozlowski was perpetrating a fraud on the Chambers judge. [ 101 ] The Chambers judge noted that much of the affidavit of Mr. Steven Mann, the principal of Double Diamond, identified and interpreted the Nevada law that was purportedly relevant to applicable appeal periods and the finality of and jurisdiction of the Nevada Court. The Chambers judge found that Mr. Mann was not a lawyer and was not qualified to give expert opinion in that respect. He found that the only admissible evidence pertaining to Nevada law was in the affidavit of Ms.

Gray Kozlowski. [ 102 ] After reviewing the law respecting lawyers associated with a party providing expert evidence of foreign law, the Chambers judge found that Ms. Gray Kozlowski was not disqualified from giving such evidence despite the fact she was a partner with GTG. [ 103 ] He found Double Diamond’s arguments that the Nevada Court lacked jurisdiction and that a fraud had been perpetrated on it by GTG to be collateral attacks on the Nevada Order.

He also observed that Double Diamond had not, at the date of the Chambers hearing, appealed the Nevada Order on these bases. [ 104 ] The Chambers judge also found that the Nevada Order was not caught by s. 3(

b) of the EFJA and s. 268(1) of the Bankruptcy and Insolvency Act , which make the EFJA inapplicable to foreign judgments arising out of bankruptcy and insolvency proceedings. He noted that Double Diamond was not insolvent nor was its property subject to the supervision and control by the court for the purposes of reorganization or liquidation. [ 105 ] The Chambers judge granted the application of GTG to have the Nevada Order registered in Saskatchewan. IV. STANDARD OF REVIEW [ 106 ] The issues in this appeal arise from the lower court’s application of the EFJA .

Thus, the standard of review in this appeal is one of correctness with respect to questions of law, and palpable and overriding error with respect to questions of fact. V. ISSUES [ 107 ] In its factum, Double Diamond challenged every discrete factual or legal finding made by the Chambers judge. However, in oral argument and in a more focused submission, counsel for Double Diamond indicated that his client was abandoning all issues set forth in the factum except the Chambers judge’s finding that Ms.

Gray Kozlowski was an expert witness with respect to Nevada law. [ 108 ] Counsel for Double Diamond, later in reply, resiled from Double Diamond’s earlier position that there was only that one issue to be determined and argued the issue of the jurisdiction of the Nevada Court was in play as well. [ 109 ] Accordingly, the issues in this appeal as identified by Double Diamond are: (

a) Did the Chambers judge err in accepting the evidence of Ms. Gray Kozlowski with respect to Nevada law? (

b) Was it established that the Nevada Court had jurisdiction over the debtor or subject-matter? VI. ANALYSIS [ 110 ] I begin with the governing law. [ 111 ] In Chevron Corp v Yaiguaje , 2015 SCC 42 , [2015] 3 SCR 69 [ Chevron ] , the Supreme Court of Canada outlined the general

principles underlying enforcement of foreign judgments: [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 [Stephen G.A. Pitel & Nicholas S. Rafferty, Conflict of Laws (Toronto: Irwin Law, 2010)] 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 [2d ed (Markham, Ont: LexisNexis, 2014)], at ¶11.177. The following comment made by McLachlin C.J. in [ Pro Swing Inc. v Elta Golf Inc. , 2006 SCC 52 , [2006] 2 SCR 612 [ 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 [ Club Resorts Ltd. v Van Breda , 2012 SCC 17 , [2017] 1 SCR 572 ], 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. [ 112 ] With respect to challenges to the facts on which the foreign order is based, the Court in Chevron said: [45] … Moreover, the facts underlying the original judgment are irrelevant, except insofar as they relate to potential defences to enforcement. … [ 113 ] With respect to the burdens of proof in these matters, the Court in Beals v Saldanha , 2003 SCC 72 , [2003] 3 SCR 416 , said: [210] Claimants who seek to have foreign judgments recognized or enforced in this country ask for the support and cooperation of Canadian courts.

They thus face the initial burden of showing that the judgment is valid on its face and w

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