Court of Appeal for Ontario

Citation: Canadian Planning and Design Consultants Inc. v. State of Libya, 2014 ONCA 924

Date: 2014-12-24

Docket: C59067

Before: Sharpe, van Rensburg and Pardu JJ.A.

Between:

Canadian Planning and Design Consultants Inc. Applicant (Respondent in Appeal)

and

State of Libya Respondent (Appellant)

Counsel: John Melia and Jennifer Radford, for the appellant Malcolm Ruby, Gary Graham and Michael Comartin, for the respondent

Heard and released orally: December 19, 2014

On appeal from the order of Justice Dale Parayeski of the Superior Court of Justice, dated June 20, 2014.

Endorsement

[1] The State of Libya ("the appellant") appeals an order enforcing an international arbitration award from the ICC Court of Arbitration. The relief sought in the Notice of Appeal and in the appellant's factum is that the order be set aside and that we order a de novo hearing of the application in the Superior Court.

[2] The appellant complains that it was denied procedural fairness when the respondent's application proceeded in the Superior Court in the appellant's absence on June 20, 2014.

[3] The appellant had retained counsel and had participated in the proceedings up to and including May 27, 2014. On that date, an order was made removing solicitors of record because the appellant had terminated its solicitors' retainer. In support of that motion, the appellant's solicitors filed a letter from the appellant's ambassador instructing them that the appellant "had decided to follow different channels and procedures" to deal with the respondent's claim. The May 27 order referred to that letter as "showing [Libya's] intent to withdraw from these proceedings".

[4] The May 27 order also set the return date for the hearing of the application to the week of June 16, 2014. The May 27 order was not appealed or otherwise challenged. It is conceded that the appellant was notified of that order.

[5] The matter came on for hearing the week of June 16, as provided for in the May 27 order, and was actually heard on June 20. No one appeared for the appellant and the order was made.

[6] The appellant has now re-retained the same solicitors to argue this appeal.

[7] The appellant submits that it did not have proper notice of the June 20 hearing date. The practice of the local court is to set a week when matters will be heard and then to telephone the parties to advise them of the specific day for the hearing. The appellant has brought a fresh evidence motion to admit the affidavit of a process server stating that he inspected the court file and could not find a telephone number for the appellant. In our view, in the absence of any evidence from a representative of the appellant regarding the appellant's intentions or knowledge of the hearing date, that affidavit falls well short of evidence capable of affecting the outcome of this appeal. The motion to adduce fresh evidence is dismissed.

[8] There is no adequate record before us as to the state of the appellant's knowledge regarding the June 20 date or its reasons for not appearing on that date. The only evidence as to the appellant's intentions with respect to the application is the letter indicating that it had decided "to follow different channels and procedures" which the motion judge interpreted as indicating an intention to withdraw from the proceedings.

[9] In these circumstances, there is no basis for this court to interfere with the order on procedural fairness grounds.

[10] The appropriate procedure to raise this issue was, and still may be, a motion to set aside the order pursuant to rule 38.11 in the Superior Court on a proper factual record. If such an application is brought subsequent to this appeal, it will be for the Superior Court to determine the availability of that remedy.

[11] While the appellant briefly addressed the substantive issue of waiver of state immunity, it did so only in an effort to show that there was sufficient merit to its position to warrant setting aside the order and ordering a de novo hearing. In these circumstances, and as the matter may return to the Superior Court on a Rule 38.11 motion, it would be premature for this court to consider the substantive issues raised.

[12] For these reasons, the appeal is dismissed.

[13] The respondent is entitled to its costs fixed at $40,000 inclusive of disbursements and applicable taxes. The appellant is to be given credit for its $20,000 currently held in trust by the respondent flowing from an earlier motion in this proceeding.

"Robert J. Sharpe J.A."

"K. van Rensburg J.A."

"G. Pardu J.A."