COURT OF APPEAL FOR ONTARIO

DATE: 20220902 DOCKET: C69479

Fairburn A.C.J.O., Thorburn and Favreau JJ.A.

BETWEEN

H.M.B. Holdings Limited Plaintiff (Appellant)

and

The Attorney General of Antigua and Barbuda Defendant (Respondent)

Counsel: Lincoln Caylor, Nina Butz and Ranjan Agarwal, for the appellant Steve Tenai and Sanj Sood, for the respondent

Heard: February 28, 2022 by video conference

On appeal from the judgment of Justice Andra Pollak of the Superior Court of Justice, dated April 12, 2021, with reasons reported at 2021 ONSC 2307.

Favreau J.A.:

A. Introduction

[1] This appeal deals with the issue of whether an Ontario court should recognize and enforce a judgment from the Supreme Court of British Columbia, which itself recognized and enforced a foreign judgment issued by the Judicial Committee of the Privy Council (the “Privy Council”). This situation is sometimes referred to as a “ricochet judgment”, a “derivative judgment” or a “judgment on a judgment”.

[2] The respondent, the Attorney General of Antigua and Barbuda (“Antigua”), expropriated property owned by the appellant, H.M.B. Holdings Limited (“H.M.B.”), located in Antigua and Barbuda. The Privy Council awarded compensation to H.M.B. for the expropriation (the “Privy Council Judgment”). H.M.B. subsequently brought an action in British Columbia to recognize and enforce the Privy Council Judgment. Antigua did not defend the action, nor did it attorn to the jurisdiction of the court in British Columbia. H.M.B. obtained a default judgment recognizing and enforcing the Privy Council Judgment in British Columbia (the “BC Judgment”). H.M.B. then brought an application to register the BC Judgment in Ontario pursuant to the Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5 (the “REJA”). That application was unsuccessful, as were both of H.M.B.’s appeals to this court and to the Supreme Court of Canada: see H.M.B. Holdings Ltd. v. Antigua and Barbuda, 2021 SCC 44, 462 D.L.R. (4th) 642, aff’g 2020 ONCA 12, 149 O.R. (3d) 440, aff’g 2019 ONSC 1445, 145 O.R. (3d) 515.

[3] Now, H.M.B. has brought an action to recognize and enforce the BC Judgment in Ontario pursuant to the common law. On a motion for summary judgment brought by Antigua, the motion judge dismissed the action in Ontario on the basis that there was no real and substantial connection between British Columbia and the underlying action in Antigua and Barbuda.

[4] I too have concluded that the action should be dismissed, but I have arrived at that conclusion on a different basis.

B. Background

(1) Expropriation litigation in Antigua and Barbuda

[5] H.M.B. owned a hotel in the country of Antigua and Barbuda. The hotel was severely damaged by Hurricane Luis in September 1995, after which H.M.B. closed the hotel and attempted to secure financing to restore the property.

[6] In 2007, the Antiguan government expropriated the property pursuant to Antigua and Barbuda’s Land Acquisition Act, 1958, c. 233. H.M.B. then brought an application for judicial review, challenging the Antiguan government’s authority to expropriate the property. In June 2007, the Privy Council upheld the expropriation of the property, provided that reasonable payments were made to H.M.B. within a reasonable time. Ultimately, after litigation at several levels of court regarding the valuation of the property, the Privy Council made an order on May 27, 2014 requiring Antigua to pay H.M.B. approximately US$26.6 million plus interest (as defined above, the “Privy Council Judgment”).

[7] Antigua has paid part, but not all, of the money it owes H.M.B. under the Privy Council Judgment. While Antigua acknowledges that it has not paid the full amount of the Privy Council Judgment, there is a dispute between the parties over how much is still outstanding.

(2) Recognition and enforcement proceedings in British Columbia

[8] On October 25, 2016, more than two years after the Privy Council Judgment was issued, H.M.B. commenced an action in the Supreme Court of British Columbia to recognize and enforce the Privy Council Judgment under the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28. The action was brought within British Columbia’s ten-year limitation period to recognize and enforce foreign judgments at common law: Limitation Act, S.B.C. 2012, c.13, s. 7.

[9] Antigua did not appear or defend the action in British Columbia. On April 7, 2017, the Supreme Court of British Columbia issued a default judgment against Antigua for approximately CDN$30 million (as defined above, the “BC Judgment”). Antigua did not take any steps to appeal or set aside the BC Judgment.

(3) Application to register the BC Judgment in Ontario under the Reciprocal Enforcement of Judgments Act

[10] In May 2018, H.M.B. brought an application in the Superior Court of Justice to register the BC Judgment in Ontario under the REJA.

[11] Section 2(1) of the REJA provides that judgments issued by reciprocating states may be registered in Ontario:

2(1) Where a judgment has been given in a court in a reciprocating state, the judgment creditor may apply to any court in Ontario having jurisdiction over the subject-matter of the judgment, or, despite the subject-matter, to the Superior Court of Justice at any time within six years after the date of the judgment to have the judgment registered in that court, and on any such application the court may, subject to this Act, order the judgment to be registered.

[12] Section 3 of the REJA places limits on the registration of foreign judgments from reciprocating states, including on the following grounds:

3 No judgment shall be ordered to be registered under this Act if it is shown to the registering court that,

(b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit during the proceedings to the jurisdiction of that court; or

(g) the judgment debtor would have a good defence if an action were brought on the original judgment.

[13] Antigua opposed the application.

[14] The Superior Court dismissed the application on the basis that registration was precluded by s. 3(b) of the REJA because Antigua “was neither carrying on business nor ordinarily resident” in British Columbia. In addition, the court held that registration was precluded by s. 3(g) of the REJA because Antigua “would have had a good defence if an action were brought on the original judgment.” Specifically, the court reasoned that the “original judgment” was the Privy Council Judgment, and Antigua would have had a limitation-period defence if H.M.B. had brought an action at common law in Ontario to recognize and enforce the Privy Council Judgment, as the two-year limitation period in Ontario had long passed: Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4.

[15] A majority of this court dismissed H.M.B.’s appeal on the basis that the Superior Court’s finding that H.M.B. was not carrying on business in British Columbia was entitled to deference. On that basis, the majority of the court held that registration was precluded by s. 3(b) of the REJA, and that they did not have to address the issue of whether Antigua had a good defence pursuant to s. 3(g) of the REJA.

[16] The Supreme Court of Canada granted leave to appeal the decision but ultimately dismissed the appeal on the same basis as this court. A majority of the court upheld the finding that Antigua was not carrying on business in British Columbia and held that it was therefore not necessary to address the issue of whether Antigua had a good defence under s. 3(g) of the REJA. In concurring reasons, Côté J. agreed with the majority’s analysis under s. 3(b) of the REJA and with the disposition of the appeal. The majority and concurring reasons are addressed more fully below.

(4) Action to recognize and enforce the BC judgment in Ontario under the common law

[17] On May 6, 2019, H.M.B. commenced an action in the Superior Court to recognize and enforce the BC Judgment in Ontario pursuant to the common law.

[18] Antigua brought a motion for summary judgment to dismiss the action. On the motion, Antigua argued that the BC Judgment was only meant to be enforceable in British Columbia and that it would not be appropriate for Ontario to recognize and enforce the BC Judgment because there was no real and substantial connection between British Columbia and the Privy Council Judgment.

[19] The motion judge granted the motion for summary judgment and dismissed the action. The motion judge reviewed some of the relevant authorities and concluded that “[t]here is no jurisprudence where a Canadian court has been asked to recognize and enforce another enforcement judgment instead of seeking to enforce the original judgment giving rise to the debt obligation.” Ultimately, the motion judge based her decision to grant summary judgment on a finding that, in this case, there was no real and substantial connection between British Columbia and the Privy Council Judgment.

C. Discussion

[20] The issue on this appeal is whether the motion judge erred in dismissing H.M.B.’s action to recognize and enforce the BC Judgment in Ontario at common law.

[21] H.M.B. argues that the motion judge erred in treating the British Columbia court as the foreign court, and in requiring a real and substantial connection between British Columbia and Antigua and Barbuda or between British Columbia and the dispute. H.M.B. further argues that, in any event, there are cases in which courts in Canada have permitted ricochet judgments, and that there is no reason in principle for refusing to do so in this case. Finally, H.M.B. submits that Antigua has no defence to recognition and enforcement of the BC Judgment, which it says would be neither contrary to public policy nor an abuse of process.

[22] In response, Antigua argues that the common law does not permit the recognition and enforcement of the BC Judgment outside of British Columbia because recognition and enforcement judgments are local in scope. Antigua also argues that recognizing the BC Judgment in Ontario would be an abuse of process because it would circumvent Ontario’s own recognition and enforcement rules, including the applicable two-year limitation period. While Antigua acknowledges that ricochet judgments have, in certain circumstances, been permitted in other jurisdictions in Canada, Antigua argues that H.M.B. overstates the weight of these authorities and maintains that the circumstances of this case justify denying the recognition and enforcement of the BC Judgment. Antigua further argues that, in any event, as found by the motion judge, there was no real and substantial connection between British Columbia and Antigua and Barbuda, and the motion judge therefore correctly refused to recognize and enforce the BC Judgment.

[23] This case raises the issue of the circumstances, if any, in which an Ontario court should recognize and enforce a recognition and enforcement judgment from another province pursuant to the common law. While there is a handful of cases where Canadian courts have permitted ricochet judgments, those cases do not directly address the court’s legal authority for doing so at common law. Accordingly, I start my analysis with a review of the general principles that apply to the recognition and enforcement of foreign judgments. I then apply the principles distilled from this review to the circumstances of this case. Finally, I address H.M.B.’s arguments that prior decisions in Canada have permitted ricochet judgments.

[24] As set out below, I have concluded that the common-law test for the recognition and enforcement of foreign judgments does not contemplate the viability of ricochet judgments. Accordingly, while I would uphold the motion judge’s decision dismissing H.M.B.’s action, I arrive at this outcome using a different path.

(1) General principles that apply to the recognition and enforcement of foreign judgments

[25] In Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, the Supreme Court established that the test for determining whether a court in one province should recognize and enforce a judgment from another province is whether there is a “real and substantial connection” between the court that issued the judgment and the proceeding or the parties in the original jurisdiction: at pp. 1108-9. However, even where there is such a real and substantial connection, the enforcing court retains a residual discretion to refuse to recognize and enforce a judgment where doing so would create an injustice or be tantamount to an abuse of process. In adopting this approach, the court emphasized the importance of comity; namely, the need for the courts of one province to show deference and respect for judgments rendered by the courts of other provinces: Morguard, at pp. 1102-3.

[26] In Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, the Supreme Court confirmed that the rationale for recognizing and enforcing interprovincial judgments in Morguard “is equally compelling with respect to foreign jurisdictions”: at para. 25. Again, the court emphasized that the rationale for recognizing and enforcing foreign judgments is comity; that is, the importance of respect between sovereign states: see Beals, at paras. 27-29, citing Morguard, at pp. 1096, 1107.

[27] Accordingly, in Beals, the court confirmed that the real and substantial connection test applies to the process by which Canadian courts may recognize and enforce judgments granted by courts in foreign jurisdictions. In applying this test, the court must first consider whether the foreign jurisdiction has a real and substantial connection with the defendant or the subject matter of the litigation: at paras. 37-39. Next, the court can refuse to recognize and enforce the foreign judgment if it was obtained by fraud, if the foreign court breached the rules of natural justice or if recognizing and enforcing the foreign judgment would be contrary to public policy: at paras. 35, 40. The court emphasized that the issue of public policy has a narrow application and is only to be invoked where it is appropriate for the court to condemn the foreign law on which the judgment is based: para. 75.

[28] More recently, in Chevron Corp. v. Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69, the Supreme Court reaffirmed that the real and substantial connection test applies to the recognition and enforcement of foreign judgments by Canadian courts. In Chevron, the Supreme Court addressed the issue of whether a Canadian court must have a real and substantial connection with the subject matter of the claim or the defendant before taking jurisdiction in an action for recognition and enforcement. Specifically, the court addressed whether a defendant must be present or have assets in the jurisdiction as a precondition to recognizing and enforcing a judgment in that jurisdiction. In that context, the court held that “there is no need to probe the relationship between the enforcing forum and the action or the defendant”: at para. 37. Instead, the enforcing court has jurisdiction over the defendant as long as there was effective service on the defendant against whom recognition and enforcement is sought: Chevron, at para. 36.

[29] The court explained the rationale for this approach by reviewing the differences between an original judgment and a recognition and enforcement judgment. The court noted that the role of the enforcing court is to facilitate enforcement, not to probe the merits of the original claim: Chevron, at para. 44. The court emphasized, at para. 46, that recognition and enforcement of foreign judgments is a highly localized phenomenon, and therefore nothing would be gained by mandating a link between the foreign dispute and the enforcing forum:

[E]nforcement is limited to measures ― like seizure, garnishment, or execution ― that can be taken only within the confines of the jurisdiction, and in accordance with its rules: *Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52*, [2006] 2 S.C.R. 612], at para. 11; J. Walker, Castel & Walker: Canadian Conflict of Laws (6th ed. (loose-leaf)), at p. 11-52. The recognition and enforcement of a judgment therefore has a limited impact: as Walker states, “[a]n order enforcing a foreign judgment applies only to local assets” (p. 14-11). The enforcing court’s judgment has no coercive force outside its jurisdiction. Whether recognition and enforcement should proceed depends entirely on the enforcing forum’s laws. [Emphasis added.]

[30] At para. 49, the court in Chevron further emphasized the localized nature of recognition and enforcement proceedings, noting that each province controls the rules for recognizing and enforcing foreign judgments in its territory:

Enforcement is limited to the seizable assets found within the province. No constitutional concern about the legitimacy of this exercise of jurisdiction emerges. I acknowledge that, under provincial legislation, a recognition and enforcement judgment issued in one province may be capable of being “registered” in another province, thus offering some advantage to plaintiffs who have already successfully obtained a recognition and enforcement judgment. Nevertheless, the existence of such legislation does not alter the basic fact that absent some obligation to enforce another forum’s judgments, the judicial system of each province controls access to its jurisdiction’s enforcement mechanisms, whenever a foreign judgment creditor seeks to seize assets within its territory in satisfaction of a foreign judgment debt. [Emphasis added.]

[31] Accordingly, as a general principle, a court in one jurisdiction will recognize and enforce the judgments of another jurisdiction, as long as the original jurisdiction had a real and substantial connection with the claim or the defendant, and as long as none of the bars to recognition and enforcement referred to above are present.

(2) The principles underlying the recognition and enforcement of foreign judgments do not favour recognizing and enforcing the BC Judgment in Ontario at common law

[32] In my view, the Supreme Court’s discussion in Chevron regarding the difference between an original foreign judgment and a recognition and enforcement judgment is the key to determining whether a court in Ontario should recognize and enforce the BC Judgment at common law.

[33] The decision of a court in one jurisdiction about whether to recognize and enforce a foreign judgment is local in scope; the decision includes consideration of local legislation, for example limitation periods, to determine whether assets in that jurisdiction should be made available to satisfy the foreign judgment. When the court in British Columbia granted the BC Judgment, it decided that the Privy Council Judgment should be recognized and enforced in British Columbia in accordance with the laws of British Columbia; it did not decide whether the Privy Council Judgment should be enforced in any other jurisdiction. While comity requires respect for the jurisdiction that granted the original judgment, the concern over comity does not arise in the same way with respect to recognition and enforcement judgments. Focusing the inquiry on whether Ontario courts should recognize and enforce the BC Judgment rather than the Privy Council Judgment circumvents what should be the focus of the inquiry, namely whether the law in Ontario is available to assist H.M.B. access assets in Ontario to satisfy the Privy Council Judgment.

[34] As the Supreme Court first emphasized in Morguard, the rationale for recognizing and enforcing judgments from other jurisdictions is the importance of comity, balanced against a sense of fairness. If a foreign court properly took jurisdiction over a dispute in the sense that the foreign court had a real and substantial connection with the dispute or the parties, Canadian courts should recognize and enforce that foreign judgment unless fraud, procedural unfairness or public policy poses a bar to doing so.

[35] In contrast, as the Supreme Court explained in Chevron, a court’s authority to recognize and enforce a judgment from another jurisdiction does not depend on the enforcing court’s jurisdiction over the subject matter of the dispute or the parties. Rather, the purpose of recognizing and enforcing a judgment from another jurisdiction is to assist the plaintiff in realizing on the foreign judgment – for example, by accessing assets in the jurisdiction where recognition and enforcement is sought. At this stage, the inquiry is local in nature and the focus is on whether the enforcing court should allow recognition and enforcement of the foreign judgment in its local jurisdiction.

[36] On that basis, in my view, it was an error in principle for the motion judge in this case to focus on whether there was a real and substantial connection between British Columbia and the original dispute in Antigua and Barbuda, or between British Columbia and the parties, for the purpose of deciding whether the BC Judgment should be recognized and enforced in Ontario. This does not accord with the original focus of the court’s inquiry in British Columbia. Rather, in British Columbia, the focus of the inquiry was whether the Privy Council Judgment should be recognized and enforced in British Columbia. In deciding that issue, the British Columbia court had to consider: (1) whether the Privy Council had jurisdiction over the dispute or the parties pursuant to the Court Jurisdiction and Proceedings Transfer Act [^1]; (2) whether Antigua was properly served with the claim; and (3) whether Antigua had any defences to a judgment for recognition and enforcement in British Columbia, such as a limitation-period defence. These issues had to be decided in accordance with the law in British Columbia.

[37] Looked at from another perspective, as between British Columbia and Ontario, the issue of comity does not arise when considering whether a court in Ontario should enforce the BC Judgment. The rationale for British Columbia to recognize the Privy Council Judgment is, in part, respect for the Privy Council, which decided that Antigua owes a debt to H.M.B. for the expropriation of H.M.B.’s property. In contrast, all the British Columbia court decided is whether the Privy Council Judgment should be recognized and enforced in British Columbia based on the law that British Columbia applies to such inquiries.

[38] The Supreme Court has relied on the following definition of comity, which was initially adopted by Estey J. in Spencer v. The Queen, [1985] 2 S.C.R. 278, at p. 283:

‘Comity’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws [.] [Emphasis added.]

See also Morguard, at p. 1096; Chevron, at para. 51.

[39] Comity encourages enforcing courts to show respect for judgments from other jurisdictions. However, comity also gives due regard to the legislative choices within the enforcing jurisdiction. Therefore, the issue of whether a particular province should recognize and enforce another province’s recognition and enforcement judgment does not raise issues of comity in the ordinary sense, as these recognition and enforcement decisions depend on the legislative and procedural choices that each province has made with respect to the enforcement of judgments in its jurisdiction.

[40] Notably, approaching recognition and enforcement judgments in the same way as original foreign judgments may deprive defendants of valid defences that would have otherwise been available if recognition and enforcement of the original foreign judgment was sought in Ontario. This case is a prime example. The limitation periods in British Columbia and Ontario are very different. Permitting H.M.B. to obtain recognition and enforcement of the BC Judgment in Ontario for the purpose of recognizing and enforcing the underlying Privy Council Judgment may allow H.M.B. to avoid the application of the two-year limitation period that would apply in Ontario if H.M.B. brought a direct action in Ontario at common law to recognize and enforce the Privy Council Judgment.

[41] This does not mean that a determination by the court in British Columbia that it has jurisdiction over recognition and enforcement of the Privy Council Judgment would be irrelevant to an action at common law in Ontario for the recognition and enforcement of the Privy Council Judgment. In such circumstances, the common law doctrines of res judicata, issue estoppel or abuse of process may well preclude Antigua from arguing that the real and substantial connection test is not met, given that the court in British Columbia has already made this determination. [^2] However, the existence of a derivative or ricochet judgment at common law – that is, for example, a recognition and enforcement judgment that is then itself recognized and enforced in another province – does not fit within the rationale for recognizing and enforcing an original foreign judgment.

[42] I am reinforced in this view by the Supreme Court’s obiter statement in Chevron, at para. 46, to the effect that “[t]he enforcing court’s judgment has no coercive force outside its jurisdiction. Whether recognition and enforcement should proceed depends entirely on the enforcing forum’s laws.”

[43] Similarly, in Janet Walker, Castel & Walker: Canadian Conflict of Law, loose-leaf (2020-Rel. 82-9), 6th ed., Vol. 1 (Toronto: LexisNexis Canada Inc., 2021), § 14.1, at p. 14-2, Professor Janet Walker states:

Just as there is no expectation that the decision of a Canadian court to recognize and enforce a foreign judgment will itself be recognized and enforced elsewhere, so too is there no expectation that a Canadian court will recognize and enforce another court’s determination of enforceability. It is a determination that must be made by each court in accordance with its own law. This precludes the enforcement of enforcement orders, sometimes described as “ricochet judgments” whereby the enforceability of the judgment is measured not by the original judgment but by the initial enforcement judgment.

[44] The Supreme Court does not explain its rationale for the obiter statement in Chevron and Professor Walker’s statement relies on this court’s 2020 decision in H.M.B., upheld on appeal to the Supreme Court. Nonetheless, these views are consistent with my analysis above regarding the distinction between an original foreign judgment and a recognition and enforcement judgment.

[45] H.M.B. argues that it would be inefficient to require it to bring recognition and enforcement proceedings in multiple jurisdictions at the same time. It submits that it should be allowed to first seek recognition and enforcement of the Privy Council Judgment in British Columbia and, if that effort does not yield sufficient assets to satisfy the Privy Council Judgment, then it should be permitted to go to Ontario and other jurisdictions for recognition and enforcement. Generally speaking, there is nothing precluding H.M.B. from taking a sequential approach by bringing a series of proceedings under the common law, for recognition and enforcement of the Privy Council Judgment in different jurisdictions. As suggested above, the doctrines of res judicata, issue estoppel or abuse of process may assist in simplifying the second and subsequent recognition and enforcement proceedings.

[46] H.M.B.’s real concern appears to be that it should be allowed to pursue recognition and enforcement of the BC Judgment rather than the Privy Council Judgment so as to avoid the application of the shorter limitation period in Ontario. In the circumstances of this case, the pursuit of a sequential approach means that, by the time H.M.B. brings a proceeding in Ontario, it may be precluded from doing so by the two-year limitation period. However, this concern is idiosyncratic to the circumstances of this case and does not detract from the principled basis set out above for not permitting derivative or ricochet judgments at common law. H.M.B. could have first brought an action for recognition and enforcement in Ontario and then in British Columbia. In such circumstances, the ten-year limitation period in British Columbia would likely have had no impact on H.M.B.’s ability to seek recognition and enforcement of the Privy Council Judgment. However, allowing H.M.B. to proceed as it desires could enable H.M.B. to extend the applicable limitation period in Ontario by first bringing a recognition and enforcement action in British Columbia, even after the expiration of the limitation period in Ontario, and then bringing a recognition and enforcement action on the BC Judgment in Ontario. In other words, H.M.B. could have sought recognition and enforcement of the Privy Council Judgment in British Columbia after the two-year limitation period expired in Ontario but before the ten-year limitation period expired in British Columbia, for the sole purpose of enforcing the Privy Council Judgment in Ontario. In my view, this improperly circumvents Ontario’s legislative choice to have a two-year limitation period and deprives Antigua of a legitimate defence that it would otherwise have in Ontario.

[47] Having said this, this decision should not be taken as a determination that the two-year limitation period for recognition and enforcement of the Privy Council Judgment has expired. Ultimately, if H.M.B. chooses to pursue a common-law action for direct recognition and enforcement of the Privy Council Judgment in Ontario, it will be for the court in that context to decide the limitation period issue, including whether discoverability may play a role in deciding that issue.

[48] Accordingly, in my view, the BC Judgment should not be recognized and enforced in Ontario at common law because the common-law test for recognition and enforcement of original foreign judgments does not apply to the recognition and enforcement of ricochet judgments.

(3) Precedents for the legal viability of ricochet judgments

[49] H.M.B. argues that there are precedents for ricochet judgments in Canada. In my view, the cases H.M.B. relies on do not support its position on this appeal, primarily because they deal with whether recognition and enforcement judgments from one province can be registered in another province under the REJA or similar legislation. They do not deal with the issue of whether a recognition and enforcement judgment from one province can be recognized and enforced in another province pursuant to an action at common law.

[50] There are no decisions from the Supreme Court dealing directly with this issue. However, as reviewed above, the court in Chevron suggested in obiter that the issue of whether a recognition and enforcement judgment could be recognized and enforced by another court at common law is different from the issue of whether a recognition and enforcement judgment could be registered in another province pursuant to the REJA or similar legislation: at para. 49. Moreover, the court noted that, at common law, each jurisdiction should apply its own laws to the recognition and enforcement of foreign judgments: Chevron, at para. 49.

[51] In the Supreme Court’s decision in H.M.B., dealing with the issue of whether the BC Judgment could be registered in Ontario under the REJA, the majority of the court stated that “[i]t is an open question” whether a recognition and enforcement judgment of one province’s court could be registered in another province: at para. 25. The majority stated that this “open question” depended on the interpretation of the word “judgment” in the REJA, and that there is conflicting jurisprudence on the issue: at para. 25. The majority further stated that, given its conclusion that the BC Judgment was barred by s. 3(b) of the REJA, it did not have to resolve this broader issue. However, in that context, at para. 23, the majority noted that H.M.B. could have commenced a common-law action to enforce the Privy Council Judgment in Ontario, but recognized that there are certain statutory advantages and disadvantages that flow from pursuing registration under the REJA:

It provides a number of statutory benefits: six years to register the judgment from the date of issue (s. 2(1)), registration order made without notice to the judgment debtor (s. 2(2)), and a short window, one month, following notice of the registration during which the judgment debtor can seek to have the registration set aside (s. 6). But these statutory benefits come at a cost. Only judgments from reciprocating jurisdictions may be registered under the REJA. British Columbia is a reciprocating jurisdiction under REJA, but Antigua is not. Moreover, recognition of judgments under REJA is subject to seven defences set out in s. 3. If any one defence is established, the judgment cannot be registered.

[52] In contrast, in her concurring reasons, Côté J. stated that she sees no impediment to the registration of a common-law recognition and enforcement judgment from one province in another province under the REJA. She stated that the definition of “judgment” in the REJA is expansive enough to achieve this outcome. More significantly, she explained that the statutory advantages under the REJA provide an “accessible and convenient mechanism” for judgment creditors, which should not be undermined by “barriers that impede access to justice”: at paras. 55-56, per Côté J. (concurring). In her view, this approach to statutory interpretation militates in favour of allowing the registration of recognition and enforcement judgments from other jurisdictions. [^3]

[53] Ultimately, as mentioned above, Côté J. agreed with the majority that the BC Judgment could not be registered under the REJA because of s. 3(b) of that statute. Therefore, her comments on the issue of whether the REJA permits registration of a recognition and enforcement judgment from another province are obiter.

[54] There are no decisions in Ontario that have directly addressed the issue of the availability of ricochet judgments, other than the previous decisions of the Superior Court and this court dealing with the registration of the BC Judgment under the REJA. [^4] There are a few decisions by Canadian courts dealing with the issue of ricochet judgments, but none of them arises under the common law. Rather, they arise under legislation in other provinces similar to the REJA. As suggested by the Supreme Court in H.M.B., these decisions are not entirely consistent: at para. 25, per Wagner C.J., and at paras. 66-68, per Côté J. (concurring). [^5]

[55] In my view, to the extent that some courts in Canada have found that statutes similar to the REJA permit the registration of recognition and enforcement judgments from other provinces, those decisions are not binding on this court. In any event, they are not applicable to the issue of whether one province should recognize and enforce a recognition and enforcement judgment from another province at common law.

[56] As emphasized by the Supreme Court in H.M.B., the REJA is meant to provide an accessible and efficient registration mechanism for enforcing judgments from other courts: at para. 23, per Wagner C.J., and at paras. 55-56, per Côté J. (concurring). If the REJA does not apply, as here, then the only available mechanism is an action for recognition and enforcement at common law. Accordingly, in determining whether to recognize and enforce a recognition and enforcement decision from another jurisdiction, the common-law principles regarding the recognition and enforcement of foreign judgments are applicable, and not the jurisprudence pertaining to the registration of foreign judgments pursuant to the REJA.

[57] Accordingly, while I too do not have to decide the issue of whether the REJA permits registration of a recognition and enforcement judgment, to the extent that some courts in Canada have found that it does, in my view, those decisions have no bearing on the issue in this case.

Disposition

[58] I would dismiss the appeal.

[59] As agreed between the parties, Antigua is entitled to costs of $20,000, all inclusive.

Released: September 2, 2022 “J.M.F.” “L. Favreau J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Thorburn J.A.”

Footnotes

[^1]: In British Columbia, the Court Jurisdiction and Proceedings Transfer Act rather than the common law applies to the issue of whether the court has jurisdiction over a proceeding. Section 3(e) of the Act provides that “a court has territorial competence in a proceeding that is brought against a person” if, amongst other factors, “there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.” Section 10(k) provides that there is a presumption that a real and substantial connection exists between British Columbia and the facts on which a proceeding is based where the proceeding “is for enforcement of a judgment of a court made in or outside British Columbia”.

[^2]: I say this as a general principle, without commenting on the application of the doctrines of res judicata, issue estoppel or abuse of process in this case, given that the British Columbia court determined that the real and substantial connection test was met by application of ss. 3 and 10(k) of the Court Jurisdiction and Proceedings Transfer Act.

[^3]: Notably, Côté J. expressed the view that the rationale for allowing the registration of a recognition and enforcement judgment should not extend to permitting the registration of a judgment in one province based on the registration of that judgment in another province: para. 60.

[^4]: While there is one other decision from Ontario involving a ricochet judgment, the legal availability of ricochet judgments was not discussed in any detail; rather, the case was decided on procedural grounds, regarding the application of a limitation period: see Tracy v. The Iranian Ministry of Information and Security, 2016 ONSC 3759, 400 D.L.R. (4th) 670, at paras. 172-78, aff’d in part, 2017 ONCA 549, 415 D.L.R. (4th) 314, at paras. 121-29, leave to appeal refused, [2017] S.C.C.A. No. 359. In that case, the plaintiffs obtained various judgments from the United States, had those judgments recognized and enforced in Nova Scotia and then sought registration of those Nova Scotia judgments in Ontario pursuant to the REJA. The trial judge refused to set aside the recognition and enforcement orders. However, the trial judge did not assess the merits of whether ricochet judgments were available to the plaintiffs; instead, he reached his conclusion on the basis that the defendant had missed the deadline to bring its motion to set aside the recognition and enforcement orders. The Court of Appeal affirmed the trial judge’s conclusion on the same basis.

[^5]: See, for example, Girsberger v. Kresz, [1999] 7 W.W.R. 761 (Man. Q.B.), aff’d , [2000] 1 W.W.R. 101 (Man. C.A.); Owen v. Rocketinfo, Inc., 2008 BCCA 502, 305 D.L.R. (4th) 370; and Solehdin v. Stern, 2014 BCCA 482, 364 B.C.A.C. 128.