United States of America v. Shield Development Co.

[Indexed as: United States of America v. Shield Development Co.]

74 O.R. (3d) 595

[2005] O.J. No. 2040

Docket: C42849

Court of Appeal for Ontario

Catzman, Labrosse and Moldaver JJ.A.

May 20, 2005

Conflict of laws -- Foreign judgments -- Enforcement -- Defences -- Breach of natural justice -- Public policy defence -- United States judgment ordering defendants to pay costs incurred in removing hazardous substances from copper mine -- Motion for summary judgment granted -- Defendants failing to show triable issue about breach of natural justice or public policy defence.

NOTE: The catchlines above relate to a judgment and costs endorsement of Herman J. of the Superior Court of Justice; 2004 66345 (ON SC), 74 O.R. (3d) 583. An appeal of these decisions to the Court of Appeal for Ontario (Catzman, Labrosse and Moldaver JJ.A.) was dismissed on May 20, 2005. The endorsement of the court was as follows:

James C. Orr and Angela Yadav, for appellants. H. Scott Fairley and John R. Archibald, for respondent.

[1] BY THE COURT:-- The appellants appeal the granting of summary judgment to the respondent to enforce a judgment it obtained in the United States against the appellants.

[2] The application judge rejected the appellants' submissions that summary judgment should not be granted on the basis of a denial of natural justice and/or as being against public policy. She gave detailed and clear reasons in rejecting these submissions on the basis that there had been no denial of natural justice and that there was no evidence that the respondent improperly targeted the appellants. We see no error in her conclusions.

[3] As stated by the respondent, the real essence of this matter is that the appellants had received adequate notice of the U.S. proceeding and had adequate opportunity to raise any defence of fact and law before the U.S. District Court. In effect, they now plead the consequences of their decision to walk away from the [page596] U.S. proceeding, to which they attorned, in an attempt to create a triable issue. Moreover, when the appellants learned of the U.S. judgment, neither appellant appealed nor moved to have the judgment set aside.

[4] Accordingly, the appeal is dismissed, with costs fixed, inclusive of disbursements and GST, in the amount of the moneys currently standing in court to the credit of this action pursuant to the order of MacPherson J.A., dated March 30, 2005 (i.e. $20,000 plus accumulated interest).