Malcolm N. Ruby

A judgment creditor sought to enforce an international arbitration award by garnishing bank accounts held by a foreign state’s embassy in Canada.

The foreign state moved to quash the notices of garnishment, asserting diplomatic immunity over the embassy accounts.

The court held that assurances from the ambassador created a strong presumption that the accounts were used for diplomatic purposes under customary international law and the Vienna Convention on Diplomatic Relations.

The creditor’s evidence, including payments of litigation costs and scholarship funds to students, did not demonstrate non‑diplomatic or commercial use sufficient to rebut the presumption.

The garnishment notices were therefore quashed and further enforcement against the accounts was prohibited.

In garnishment proceedings to enforce an arbitral award against a foreign state, the moving party sought cross-examinations and broad document production relating to embassy bank accounts said to be immune from execution.

The court applied the previously established framework recognizing a strong but rebuttable presumption of diplomatic immunity once a competent authority provided due assurances that the accounts were used for sovereign or diplomatic purposes.

The court held that compelling the ambassador, the bank, or third parties to disclose records or submit to questioning would unduly interfere with the affairs of the diplomatic mission and was not justified on the evidentiary record.

The motion to strike the moving party’s affidavit was also dismissed.

All production and cross-examination requests were denied.

The applicant judgment creditor sought to enforce a foreign arbitral award by garnishing embassy-related bank accounts in Canada.

The court held that customary international law governs immunity over embassy bank accounts through a restrictive immunity framework requiring proof of diplomatic relations, assurances of diplomatic purpose, and an opportunity for the creditor to rebut immunity by proving a commercial or other non-diplomatic use.

A Foreign Relations Certificate from the Minister of Foreign Affairs was conclusive only as to the existence of diplomatic relations between the states.

It did not confer absolute immunity or bar further inquiry into whether the accounts fell within an exception.

The appellant appealed an order enforcing an international arbitration award, arguing it was denied procedural fairness when the application proceeded in its absence.

The appellant had previously terminated its solicitors' retainer and indicated an intent to follow different channels.

The Court of Appeal dismissed the appeal and the motion to adduce fresh evidence, finding no adequate record to support the procedural fairness claim.

The court noted that the appropriate procedure to raise the issue is a motion to set aside the order under Rule 38.11 in the Superior Court.

The appellants obtained ex parte Anton Piller and Mareva injunctions against the respondents based on misleading evidence.

The injunctions were later set aside, and a damages inquiry was held pursuant to the appellants' undertaking as to damages.

The inquiry judge awarded the respondents $954,576 in damages, including compensation for a seized cellphone, loss of transition time, and legal fees, as well as a charging order for respondents' counsel.

The appellants appealed the damages award and the charging order.

The Court of Appeal dismissed the appeal, finding that the inquiry judge made no errors in assessing damages or granting the charging order.

The plaintiff brought an urgent motion under Rule 45.02 of the Rules of Civil Procedure seeking an order preserving a specific fund by requiring the defendants to pay into court the anticipated proceeds of sale of a commercial property, or a portion thereof, pending determination of outstanding damage claims arising from a failed closing under an agreement of purchase and sale.

The court reviewed the governing test requiring a proprietary claim to a reasonably identifiable fund, a serious issue to be tried, and a balance of convenience favouring the order.

The court held that the plaintiff’s claim was for unproven damages, including an alleged abatement of the purchase price and lost profits, rather than a proprietary interest in the sale proceeds.

As the plaintiff failed to establish a legal right to a specific fund as required by Rule 45.02, the motion was dismissed without consideration of the remaining elements of the test.

Following a damages inquiry in which the defendants were awarded damages including legal costs, the defendants sought additional partial indemnity costs for a prior recusal motion.

The court determined that the costs associated with the recusal motion had already been included in the damages award for legal costs following review of the defendants’ docketed accounts.

Because those costs were already compensated in the earlier award, they could not be recovered again.

The court therefore dismissed the belated request for additional costs and declined to award further costs for the present dispute.

The applicant, a branch of the United States Department of Defense, sought judicial review of an Ontario Labour Relations Board decision certifying a union to represent its civilian employees in Ontario.

The Board had found that the applicant was a separate agency of the foreign state, had waived sovereign immunity, and was engaged in commercial activity.

The Divisional Court quashed the certification, holding that the applicant was an integral part of the U.S. government, had not waived its immunity, and was engaged in sovereign military support activities rather than commercial activities.

The defendants sought over $100 million in damages following a damages inquiry ordered after the plaintiffs wrongfully obtained ex parte Mareva and Anton Piller orders that shut down the defendants' lottery telemarketing business.

The court found that most of the financial losses and lost business opportunities were caused by an American Temporary Restraining Order that pre-dated the ex parte orders, not the ex parte orders themselves.

However, the court awarded $250,000 for the loss of an opportunity to transition the business in an orderly fashion, $1,000 for a seized cell phone, and $703,576 for legal expenses incurred in setting aside the orders and participating in the inquiry, for a total award of $954,576.

Following certification of a proposed class proceeding concerning a medical product, the court determined the appropriate costs award for the certification motion and a related motion to strike an affidavit.

The court considered the factors in Rule 57.01 of the Rules of Civil Procedure and s. 31 of the Class Proceedings Act, 1992.

Although the plaintiffs were successful in obtaining certification, the evidentiary record and legal issues were relatively modest and the defendants made timely concessions that narrowed the scope of the dispute.

The court concluded that a conservative costs award was appropriate and reduced the plaintiffs’ claimed fees to a reasonable partial indemnity level.

The defendants were awarded costs for their successful motion to strike, which were offset against the certification costs.

An appeal was brought from orders of a Master concerning discovery-related procedural matters and a subsequent costs award in protracted estate litigation.

The appellant, self-represented, challenged the Master's rulings but filed no factum.

The court applied the standard of review applicable to a Master’s decision, requiring an error of law, misapplication of legal principles, or a palpable and overriding error in the assessment of evidence.

After reviewing the extensive reasons of the Master, the court found no such errors.

The appeal was dismissed and the prior costs order confirmed.

The appellants brought a motion in writing to amend the court's previous judgment to address the issue of costs granted by the motions judge.

The Court of Appeal dismissed the motion, noting that the appellants had failed to mention the costs award in their notices of appeal, factum, or oral argument.

The court held that it was too late to raise the issue and that allowing the motion would be unfair and prejudicial to the respondents.

Costs of the motion were awarded to the respondents in the amount of $5,000.

The appellant franchisor appealed an order declaring that provisions in its standard franchise agreement requiring franchisees to release the franchisor from liability as a condition of renewal or transfer were void and unenforceable.

The Court of Appeal dismissed the appeal, holding that such releases violate sections 4 and 11 of the Arthur Wishart Act by forcing franchisees to waive statutory rights and interfering with their right to associate in a class proceeding.

The Court also upheld the application of Ontario law to franchisees operating outside the province due to the agreement's choice of law clause.

The parties made costs submissions following an appeal decision.

The Court of Appeal for Ontario maintained its view that success on the appeal was equally divided.

Consequently, the court ordered that there be no costs of the appeal.

The United States government sought to enforce a $19 million Illinois judgment and permanent injunction against the defendants, who operated a cross-border lottery telemarketing business.

The motion judge refused summary judgment, finding a triable issue on a 'new' defence of denial of a meaningful opportunity to be heard.

The motion judge also ordered an immediate damages inquiry regarding undertakings the U.S. gave when it previously obtained Mareva and Anton Piller orders that were later dissolved.

The Court of Appeal allowed the appeal in part, holding that there is no new defence to foreign judgment enforcement based on a meaningful opportunity to be heard, which is indistinguishable from natural justice.

The Court enforced the U.S. judgment but upheld the order for a damages inquiry, finding no special circumstances to relieve the U.S. of its undertakings despite the alleged illegality of the defendants' business.

The plaintiffs sought leave to appeal an interlocutory order dismissing their motion for summary judgment to enforce an Illinois judgment.

The motion judge had found a genuine issue for trial based on a novel defence: the loss of a meaningful opportunity to be heard, stemming from the plaintiffs' conduct in obtaining ex parte orders in Canada that financially ruined the defendants.

The Divisional Court granted leave to appeal, finding reason to doubt the correctness of recognizing this new defence, as it appeared indistinguishable from the traditional natural justice defence and would require relitigating the foreign action.

The appellant, a Canadian pig producer, appealed an order dismissing its motion for an anti-suit injunction and granting a stay of its Ontario action against a Russian corporation.

The appellant sought to avoid an arbitration clause requiring arbitration in Moscow, alleging the respondent's CEO made death threats against its chief operating officer.

The Court of Appeal dismissed the appeal, finding the injunction issues moot as the arbitration had already occurred.

The court upheld the stay of the Ontario action, concluding the arbitration clause was broad enough to encompass the appellant's related tort claims.

The appellants were successful in obtaining a notable reduction in the costs award against the respondents and sought their costs.

The Divisional Court considered the divided success on various issues, including the leave motion, interest date, substantial indemnity, and fresh evidence.

The court fixed the appellants' costs at $35,000, apportioning liability between the Yemec respondents (two-thirds) and the Bungaro respondents (one-third) to reflect their different levels of participation and liability.

The appellants appealed a costs order of $691,304.74 on a substantial indemnity basis, awarded after the respondents successfully moved to set aside an ex parte Mareva injunction and Anton Piller order.

The Divisional Court upheld the substantial indemnity scale, finding the appellants' failure to make full and frank disclosure was not inadvertent.

However, the court found the motion judge erred in failing to properly analyze the bills of costs and apply the Boucher principles to ensure the quantum was fair and reasonable.

The court reduced the costs awarded to the Yemec respondents by 40% and to the Bungaro respondents by 20%.

The court also held that post-judgment interest on the costs award should run from the date of the costs order, not the date of the decision on the merits.

The appellant appealed an order dismissing his action against the Attorney General United States Department of Justice on the ground of sovereign immunity.

The appellant's claims related to decisions made by US immigration officials regarding his immigration status and alleged loss of employment opportunities.

The Court of Appeal dismissed the appeal, finding that the claims did not fall within the personal injury or property damage exceptions under section 6 of the State Immunity Act, and that the alleged torts did not occur in Canada.