Introduction

[1] The applicant Corona Steel Industry Private Limited (“Corona”) makes application for:

a. An order for recognition of an Order and Decree granted on April 20, 2015 by the High Court of Calcutta, India (the “Indian Judgment” or the “decree”) by which the respondent Integrity Worldwide Inc. (“IWW”) was ordered to pay to Corona the principal amount of $86,638 in United States dollars, together with prejudgment and postjudgment interest thereon as provided for in the Order and Decree, and

b. Judgment in accordance with the Indian Judgment.

[2] IWW opposes the application on the grounds that:

a. Corona failed to tender admissible expert evidence proving Indian law and, as a result, I am required to presume that Indian law is the same as Ontario law. IWW submits that under Ontario law, Corona’s application is statute barred because it was commenced after the second anniversary of the day on which the claim was discovered.

b. Corona has failed to prove that the Indian Court properly exercised jurisdiction by establishing that there exists a real and substantial connection between the Indian Court and either (i) the subject matter of the action, or (ii) IWW.

c. Alternatively, IWW was denied natural justice in that proper service was never rendered or proven to permit the suit to be heard by the Indian Court in the absence of IWW.

[3] For the following reasons, I conclude that Corona is entitled to the relief sought on this application.

Procedural History

[4] This application was initially returnable on October 23, 2017. The application was supported by an affidavit of Jeannine Felice, a law clerk employed by the law firm in Toronto that represents Corona. In her affidavit, Ms. Felice gave evidence of, among other things, the procedural background to the granting of the Indian Judgment and that the time for filing an appeal has expired under Indian law.

[5] IWW delivered a responding record that included the affidavit of John Melic, a director and the president of IWW and the affidavit of Elyse Calvi, a student-of-law with the law firm in Toronto that represents IWW. Mr. Melic’s affidavit addressed factual matters in relation to IWW’s business dealings in respect of Corona’s claim, and communications with the legal representatives of Corona in India in relation to the suit in India, including his question of the basis for the Indian Court’s jurisdiction. Ms. Calvi’s affidavit appended articles on the subject of delays and inefficiencies, as well as corruption, in the Indian judicial system.

[6] The application was scheduled to be heard on October 23, 2017. Corona delivered its factum for the application dated October 4, 2017, and IWW delivered its responding factum dated October 16, 2017. Both factums included submissions with respect to the law of India. No affidavit with respect to Indian law was delivered by either Corona or IWW.

[7] At the hearing of the application, Glustein J. advised that he could not properly hear the application on the evidence before him because neither party had filed evidence on Indian law. The application was adjourned in order for the parties to file evidence on the law of India.

[8] Corona then delivered the affidavit of Pubali Sinha Chowdhury, a lawyer based in Calcutta, India at the law firm that acted as counsel for Corona in the litigation in India against IWW. IWW did not deliver affidavit evidence to prove Indian law. IWW did not cross-examine Ms. Chowdhury on her affidavit.

[9] Corona delivered a Supplementary Factum for its application dated January 19, 2018 in which it makes submissions based upon the affidavit of Ms. Chowdhury. IWW delivered a Fresh as Amended Responding Factum dated January 26, 2018 in which it made submissions challenging the admissibility of the Chowdhury affidavit on various grounds including that Ms. Chowdhury had failed to comply with rules 39.01 (7) and 53.03 (2.1) of the Rules of Civil Procedure. Following receipt of this IWW’s Fresh as Amended Responding Factum, Corona provided the Acknowledgment of Expert’s Duty and the expert’s statement provided for in Rule 53.03(2.1) of the Rules of Civil Procedure. Corona delivered a further reply factum and IWW delivered a sur-reply factum.

Analysis

[10] The following issues arise on this application:

a. Is the affidavit of Ms. Chowdhury inadmissible in evidence on this application?

b. Has Corona proven that the Indian Court properly assumed jurisdiction because there is a real and substantial connection between the Indian Court and either (i) the subject matter of the action in India, or (ii) IWW?

c. Is this application for recognition and enforcement of the Indian Judgment statute barred because it was commenced after the second anniversary of the day on which the claim was discovered?

d. Was IWW denied natural justice in the legal proceedings in India?

[11] Each issue is addressed in turn.

Is the affidavit of Ms. Chowdhury inadmissible in evidence on this application?

[12] The affidavit of Ms. Chowdhury includes evidence with respect to:

a. Substantive and procedural laws of India, generally.

b. Steps taken by her firm as the legal representative for Corona in the Indian suit, according to Indian procedural law, that resulted in the “ex parte decree” against IWW dated April 20, 2015.

c. “Responses” to the factum that had been filed by IWW for the original hearing of the application in Ontario.

d. Steps taken under Indian procedural law for enforcement of the Indian Judgment including settlement of the “draft decree” and obtaining a certified copy of the “decree” on October 6, 2015.

e. Steps taken to serve the “decree” on IWW according to the Hague Convention.

f. The time according to Indian law for an appeal or an application to set aside the Indian Judgment, and to enforce the decree against IWW.

[13] IWW submits that the Chowdhury affidavit is inadmissible because:

a. Corona failed to follow the Ontario Rules of Civil Procedure in relation to this affidavit,

b. Chowdhury is not impartial and has ignored her obligation to the Court, and is nothing more than an advocate for Corona; and

c. Chowdhury has a direct financial interest in the success of Corona on this application.

[14] IWW submits that Ms. Chatterley’s affidavit appears to be “advocacy dressed up as expert opinion” and that it is tainted by bias and by her taking the role of advocate for Corona. IWW points to those paragraphs in the affidavit of Ms. Chowdhury under the heading “Jurisdiction: Test of real and substantial connection” in which, IWW submits, Ms. Chowdhury offered an opinion on a matter of domestic Canadian law. IWW also submits that Ms. Chowdhury provided an opinion as to when the Ontario limitation period commenced, a matter outside of her expertise. IWW submits that these are breaches of Ms. Chowdhury’s duty to provide a fair, objective and non-partisan opinion as to the laws of India.

[15] IWW also provided examples of what, it submits, represent legal argument and opinion contained in the Chowdhury affidavit which go beyond a statement of the laws of India and their application to this matter. IWW points, in particular, to the some paragraphs of the Chowdhury affidavit under the heading “Responses to the ‘Factum of the Respondent”.” IWW submits that in these paragraphs, Ms. Chowdhury used language that reads as advocacy on behalf of Corona.

[16] Further, IWW submits that Ms. Chowdhury has a direct financial interest in Corona’s success of the application and that she has supported the propriety of the actions taken by her firm in order to deflect any allegations of wrongdoing against her or her firm. IWW submits that Ms. Chowdhury cannot give an impartial expert opinion about her own conduct as counsel for Corona in the proceedings in India because, if Corona is unsuccessful, then it may have a claim against Ms. Chowdhury in negligence. IWW submits that it is clear from her affidavit that Ms. Chowdhury does not understand her duty, as an expert, to assist the Court by providing fair, objective and non-partisan evidence.

[17] IWW relies upon the Supreme Court of Canada decision in WBLI v. Abbott and Halliburton, 2015 SCC 23, [2015] 2 S.C.R. 182 where, at para. 46, Cromwell J. described the duty owed by an expert witness to the court:

I have already described the duty owed by an expert witness to the court: the expert must be fair, objective and non-partisan. As I see it, the appropriate threshold for admissibility flows from this duty. I agree with Prof. (now Justice of the Ontario Court of Justice) Paciocco that “the common law has come to accept ... that expert witnesses have a duty to assist the court that overrides their obligation to the party calling them. If a witness is unable or unwilling to fulfil that duty, they do not qualify to perform the role of an expert and should be excluded” [citation omitted]. The expert witnesses must, therefore, be aware of this primary duty to the court and be able and willing to carry it out.

Cromwell J. held at paras. 48-49 that once an expert attests or testifies on oath recognizing and accepting this duty, the burden is on the opposing party to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable and/or unwilling to comply with that duty. If this is done, the burden to establish on a balance of probabilities this aspect of the admissibility threshold remains on the party proposing to call the evidence. If this is not done, the evidence, or those parts of it that are tainted by a lack of independence or impartiality, should be excluded.

[18] Ms. Chowdhury delivered a Form 53 acknowledgement of expert’s duty in which she acknowledged her duty to provide evidence that is fair, objective and non-partisan, and she acknowledged that this duty prevails over any obligation which she may owe to any party by whom or on whose behalf she was retained.

[19] IWW submits that it has met its burden of showing that there is a realistic concern that Ms. Chowdhury’s evidence should not be received because she is unable to comply with her duty.

[20] In WBLI v. Abbott, Cromwell J. explained the considerations for a judge in ruling on admissibility of an expert’s evidence at para. 49:

This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert in admissible. In most cases, the mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern. ... Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court. I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.

[21] IWW also relies upon the decision of the Court of Appeal in Alfano v. Piersanti, 2012 ONCA 297 in which O’Connor A.C.J.O. addressed the need for independence of expert witnesses at para. 108:

When courts have discussed the need for the independence of expert witnesses, they often have said that experts should not become advocates for the party or the positions of the party by whom they have been retained. It is not helpful to a court to have an expert simply parrot the position of the retaining client. Courts require more. The critical distinction is that the expert opinion should always be the result of the expert’s independent analysis and conclusion. While the opinion may support the client’s position, it should not be influenced as to form or content by the exigencies of the litigation or by pressure from the client. An expert’s report or evidence should not be a platform from which to argue the client’s case. As the trial judge in this case pointed out, “the fundamental principle in cases involving qualifications of experts is that the expert, though retained by the clients, assists the court.”

[22] In Alfano, O’Connor A.C.J.O. also addressed the judge’s discretion to admit expert evidence where there is an attack mounted on the expert’s independence at paras. 110-111:

In most cases, the issue of whether an expert lacks independence or objectivity is addressed as a matter of weight to be attached to the expert’s evidence rather than as a matter of the admissibility. Typically, when such an attack is mounted, the court will admit the evidence and weigh it in light of the independence concerns. Generally, admitting the evidence will not only be the path of least resistance, but also accord with common sense and efficiency.

That said, the court retains a residual discretion to exclude the evidence of a proposed expert witness when the court is satisfied that the evidence is so tainted by bias or partiality as to render it of minimal or no assistance. In reaching such a conclusion, a trial judge may take into account whether admitting the evidence would compromise the trial process by unduly protracting and complicating the proceeding. [Citation omitted]. If a trial judge determines that the probative value of the evidence is so diminished by the independence concerns, then he or she has a discretion to exclude the evidence.

[23] In response, Corona submits that there is no legitimate reason to impugn or doubt the correctness of the sworn statements made in Ms. Chowdhury’s affidavit. Corona notes that IWW did not file its own affidavit with respect to Indian law, and it did not cross-examine Ms. Chowdhury on her affidavit. Corona submits that only counsel in the Indian litigation could provide evidence of the process and procedure that was actually undertaken in the Indian proceeding and that there was nothing improper in this counsel providing direct evidence of the process and procedure that was actually followed, including the laws and procedural rules which applied at each step of the proceeding.

[24] The affidavit of Ms. Chowdhury includes factual evidence with respect to the procedure that was followed in the Indian litigation, as well as evidence concerning the law of India that applies to this legal proceeding. There are some statements in her affidavit that may be read as statements made in support of Corona’s application, including some statements made under the heading “Responses to the ‘Factum of the Respondent”. These include statements (i) describing a statement in IWW’s factum as “completely incorrect”, (ii) that “there cannot be any ambiguity” with respect to whether the originating process was received by IWW in Canada, (iii) that “it is absurd to contend” that the Indian Judgment cannot be enforced in Canada, (iv) that “it is impossible to legitimately argue” that natural justice has been denied to IWW, and (v) that it “is a trite principle of law” that a party should not be able to take advantage of its own negligence.

[25] IWW also submits that the evidence given in the Chowdhury Affidavit appears to be biased and not impartial in that Ms. Chowdhury frequently speaks to the propriety of steps taken by her and by her offices in India. IWW submits that this was done to deflect any allegations of wrongdoing against Ms. Ms. Chowdhury or her firm that could result in a negligence claim and, therefore, she is not impartial. IWW submits that Ms. Chowdhury and/or her firm has a financial interest in the outcome of the litigation and, for this reason, she cannot be impartial.

[26] Ms. Chowdhury has given affidavit evidence of factual matters that relate to her role in the Indian litigation as counsel for Corona and, in addition, she has given evidence concerning the legal and procedural framework in relation to the Indian litigation. Corona submits that Ms. Chowdhury may be considered to be a “participant expert”, as that term was used in Westerhof v. Gee Estate, 2015 CarswellOnt 3977 (C.A.) in relation to a witness with special skill, knowledge, training or experience who has not been engaged by or on behalf of a party to the litigation and who may give opinion evidence for the truth of its contents (without complying with rule 53.03) where (i) the opinion to be given is based on the witness’s observation of or participation in the events at issue; and (ii) the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

[27] In this case, Ms. Chowdhury has been engaged by Corona, a party to the litigation, and she has provided the Acknowledgment of Expert’s Duty and the expert’s statement provided for in Rule 53.03(2.1) of the Rules of Civil Procedure. I do not admit her evidence as a “participant expert”.

[28] Ms. Chowdhury described the applicable principles of Indian law by reference to the procedural laws that apply, and she appended copies of the applicable procedural laws as exhibits to her affidavit. There is no suggestion that she is not qualified to give evidence concerning the laws of India that may be relevant in this case. Notwithstanding the use in some paragraphs of language that can be read as statements in support of Corona’s position, I do not regard the affidavit, when read as a whole, to be so tainted by bias or partiality as to render it of minimal or no assistance. This is not one of those very clear cases in which I am able to conclude that the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence.

[29] I also do not agree that the fact that Ms. Chowdhury and her firm represented Corona in the legal proceedings against IWW in India is sufficient for me to conclude that she and her firm have a financial interest in the outcome of the litigation in Ontario that disqualifies her from giving evidence. Ms. Chowdhury and her firm have completed their engagement as counsel for Corona in respect of the Indian litigation. For me to reach a conclusion that her evidence is tainted by bias because of a concern that the firm might be sued for negligence would be purely speculative.

[30] I allow the Chowdhury affidavit to be admitted into evidence, and I assess this evidence in light of the independence concerns that IWW has advanced.

Has Corona proven that the Indian Court properly assumed jurisdiction because there is a real and substantial connection between the Indian Court and either (i) the subject matter of the action in India, or (ii) IWW?

[31] Canadian courts have adopted a generous and liberal approach to the recognition and enforcement of foreign judgments. To recognize and enforce such a judgment, the only prerequisite is that the foreign court had a real and substantial connection with the litigants or with the subject matter of the dispute, or that traditional bases of jurisdiction were satisfied. Chevron Corp. v. Yaiguaje, 2015 SCC 42 at para. 27.

[32] In an action for recognition and enforcement of a foreign judgment, the enforcing court, in this case Ontario, must determine whether the foreign court had a real and substantial connection to the action or the parties. If the foreign court did not properly take jurisdiction, its judgment will not be enforced. Once the real and substantial connection test is found to apply to a foreign judgment, the court should then examine the scope of the defences available to a domestic defendant in contesting the recognition of such a judgment. See Chevron, at para. 33.

[33] In Beals v. Saldanha, 2003 SCC 72, the Supreme Court of Canada explained at para. 32 how this test applies in an action for recognition and enforcement of a foreign judgment:

32 The “real and substantial connection” test requires that a significant connection exists between the cause of action and the foreign court. Furthermore, a defendant can reasonably be brought within the embrace of a foreign jurisdiction’s law where he or she has participated in something of significance or was actively involved in that jurisdiction. A fleeting or relatively unimportant connection will not be enough to give a foreign court jurisdiction. The connection to the foreign jurisdiction must be a substantial one.

The real and substantial connection test applies both to a judgment after trial and a default judgment: Beals, at paras. 31, 53.

[34] The “real and substantial connection” test is a very broad legal standard that provides for generous recognition and enforcement of foreign judgments. The test requires only that there be a real and substantial connection, not necessarily the most real and substantial connection of all possible jurisdictions: Monte Cristo Investments LLC v. Hydroslotter Corp., (2011) CarswellOnt 10340 at para. 118-19, and authorities cited in those paragraphs.

[35] The evidence before me with respect to the contracts between IWW and Corona is:

a. Corona is located in and carries on business from Calcutta, India.

b. IWW is located in the province of Ontario. It conducts its business largely in Canada, although it does conduct some business in the United States, the United Kingdom and elsewhere.

c. In 2010 and 2011, IWW issued several purchase orders from Ontario to Corona in India for the supply and delivery of products. Corona signed the purchase orders in India and sent them to IWW in Ontario.

d. Corona performed those portions of the contract relating to preparing the products for delivery to IWW in India. The products were shipped from India to IWW in Ontario.

e. Invoices were issued in India by Corona and sent to IWW at its address in Ontario.

f. Payment was to be made to Corona in India.

g. IWW alleges that Corona did not deliver the products in a timely way, and it alleges that Corona breached its contracts with IWW.

[36] IWW submits that Corona has failed to establish a real and substantial connection between India and either (a) the subject matter of the action, or (b) IWW. In this regard, IWW submits:

a. The contract was made in Ontario where the accepted purchase orders were received and this factor does not support a real and substantial connection with India.

b. The receipt by Corona of purchase orders in India and the fact that the products were sent from India to Ontario are neutral factors.

c. The contract was not entirely performed by Corona in India, because Corona’s contractual obligations could not be completed until the products had been received by IWW in Ontario.

d. The fact that damages were suffered by Corona in India is an irrelevant factor in Ontario.

e. The simple fact that Corona is an Indian company which operates out of India is not sufficient to meet the real and substantial connection test.

[37] The evidence is that acceptance of IWW’s purchase orders occurred in Ontario. In Eastern Power Ltd. v. Azienda Communale and Ambiente, 1999 CanLII 3785 (ON CA), [1999] O.J. No. 3275 the Court of Appeal addressed the place that a contract was made when acceptance was made by facsimile, a form of instantaneous communication. The Court of Appeal held, at paras. 21-29, that in a simple case involving acceptance by instantaneous communication, the general rule is that the contract is made where the acceptance was received. In this case, the application of this rule would mean that the contract was made in Ontario. The place where the contract was made is not a factor that establishes a real and substantial connection between India and either the subject matter of the action or IWW.

[38] The receipt by Corona of purchase orders in India and the fact that the products were shipped to IWW from India are factors that show a connection between the subject matter of the dispute and India. It is clear that IWW intended to and did enter into a contractual relationship with a company that carries on business in India and would supply the products ordered by IWW from India. Although the contract may not have been entirely performed in India because the products were shipped from India to Ontario, a substantial part of the contract, the preparation of the products for delivery to IWW, was performed in India.

[39] I do not agree with IWW’s submission that the fact that payment was to be made by IWW to Corona in India is an irrelevant factor in determining whether there is a real and substantial connection between India and the subject matter of the dispute. The fact that Corona suffered damages in India through non-payment of its invoices is a factor that supports a real and substantial connection between India and the subject matter of the dispute.

[40] IWW relies on a decision of the New Brunswick Court of Appeal in Pro Transport Inc. v. ABB Inc., [2017] N.B.J. No. 334 in support of its submission that the fact that Corona is an Indian company that operates out of India is not sufficient to meet the real and substantial connection test. In Pro Transport, an action was brought in New Brunswick and the originating process was served on defendants outside New Brunswick. The defendants moved to dismiss the action on the ground that the New Brunswick courts lacked jurisdiction because there was no real and substantial connection between the subject matter of the litigation and New Brunswick. The court considered the presumptive connecting factors that the Supreme Court of Canada set out in Van Breda v. Village Resorts Ltd., 2012 SCC 17, [2012] 1 S.C.R. 572 that apply to determine whether jurisdiction should be assumed by a Canadian court under the real and substantial connection test in a case concerning a tort. In Pro Transport, L.A. LaVigne J. held that the presence of the plaintiff in the jurisdiction is not, on its own, a connecting factor and that, absent other considerations, the presence of the plaintiff in the jurisdiction will not create a presumptive relationship between the forum and either the subject matter of the litigation or defendant.

[41] I agree with IWW’s submission that, on its own, the simple fact that Corona is an Indian company which operates out of India is not sufficient to meet the real and substantial connection test. However, Corona does not rely on this fact on its own to establish a real and substantial connection between India and the subject matter of the dispute. The other factors upon which Corona relies, the receipt of purchase orders in India, the preparation of the goods for shipment in India, the shipment of the goods in India for delivery to Ontario, the rendering of invoices in India for transmission to Ontario, and the fact that payment of invoices was to be made in India are factors that establish a substantial connection, one that, using the language from Beals, is not “fleeting” or “relatively unimportant”, between the subject matter of the dispute and India.

[42] I conclude that Corona has established that there is a substantial connection between the subject matter of the dispute and the foreign court in India and, therefore, Corona has satisfied the real and substantial connection test.

Is this application for recognition and enforcement of the Indian Judgment statute barred because it was commenced after the second anniversary of the day on which the claim was discovered?

[43] Section 4 and 5(1) of the Limitations Act provide:

4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to

by an act or omission

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be the appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[44] IWW submits that Corona is statute barred from enforcing the Indian Judgment because the two-year limitation period that applies in Ontario has expired. In Ontario, an action for recognition and enforcement of a foreign judgment is treated as an action upon a simple contract for purposes of determining the limitation period. IWW submits that Ontario law must be applied because Corona failed to prove Indian law and, under Ontario law, once a party is noted in default and a judgment is obtained, there is no requirement to serve the defendant with the judgment; the plaintiff may enforce the judgment immediately. IWW submits that the date that the Indian Judgment was granted is April 20, 2015 and that this application was commenced more than two years later, on June 8, 2017. IWW submits that the application was commenced more than two years after the second anniversary of the day on which the claim was discovered and that the application is statute barred.

[45] In response, Corona submits that:

a. A certified copy of the Indian Judgment is required in order to enforce the Indian Judgment.

b. According to the unchallenged evidence of Ms. Chowdhury, the 30 day limitation period for appeal of the Indian Judgment began to run on October 6, 2015, when the certified copy of the decree was made available by the Indian Court at Calcutta.

c. It was only legally appropriate for Corona to commence an application for recognition and enforcement of the Indian Judgment upon being informed by letter dated March 29, 2017 that the certified copy of the Indian Judgment had been served on IWW or, alternatively, on October 22, 2016, the date of the expiry of the 30-day period following IWW’s receipt on September 22, 2016 of the certified copy of the Indian Judgment.

[46] In her affidavit at paragraphs 40, and 44-57, Ms. Chowdhury deposed that:

a. A certified copy of the Indian Judgment is required in order to enforce the Indian Judgment.

b. A certified copy of the Indian Judgment is not made available to the parties or their advocates immediately upon passing of the Indian Judgment. Rather, there is a separate procedure under the applicable Indian procedural rules (the “Original Side Rules”) for a certified copy to be provided. These procedural rules were followed immediately upon the conclusion of the hearing and passing of the decree [the Indian Judgment] on April 21, 2015. There was no lack of diligence in filing the application for drawing up the decree dated April 20, 2015, and the department [of the Indian Court] was able to complete drawing up of the decree only on October 6, 2015, and the certified copy of the Indian Judgment was only made ready for delivery to Corona on this date.

c. Pursuant to section 12 of the [Indian] Limitation Act, 1963, the 30-day limitation period for the defendant to file any application for setting aside the ex parte Indian Judgment or for appeal from the Indian Judgment could have started only after the certified copy of the Indian Judgment was made available be the department concerned of the Indian Court.

d. The Indian Judgment would become absolute after the expiry of 30 days from the date of obtaining the certified copy of the Indian Judgment on October 6, 2015, that is, after November 5, 2015.

e. Under section 12 of the [Indian] Limitation Act, 1963 and according to judicial precedents and commentary on this point, in computing the period of limitation for any appeal or application from a judgment or decree, the date on which the judgment or decree was pronounced and the “time requisite” for obtaining a certified copy of the decree or judgment shall be excluded. This means that in computing the period of limitation for appeal, the date on which the judgment or order or decree was passed and the time taken by the Court to make available the certified copy applied for are excluded.

f. The date on which the certified copy of the Indian Judgment was made available by the Indian Court to the parties, October 6, 2015, is the date on which the period for appeal or setting aside the decree begins to run pursuant to section 12 of the [Indian] Limitation Act, 1963.

[47] Section 12 of the Indian Limitation Act, 1963 to which Ms. Chowdhury refers in her affidavit is appended as an exhibit to her affidavit and reads:

S. 12. Exclusion of time in legal proceedings. – (1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.

(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.

(3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment [^1] [****] shall also be excluded.

(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.

[48] According to Ms. Chowdhury’s affidavit at paras. 59-71:

a. After receiving the certified copy of the Indian Judgment, the next step was to have the certified copy served on IWW in Canada. After unsuccessfully attempting to effect service through the High Commission to India in Canada and the Consulate General of India in Toronto, Ms. Chowdhury’s office determined that in order to avoid any procedural flaw, the certified copy of the Indian Judgment ought to be served in terms of the official channel prescribed under the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 1965 (the “Hague Convention”) to which both India and Canada are parties.

b. The office of the Deputy Registrar of the Indian Court informed Ms. Chowdhury’s office by letter dated March 29, 2017 that the certified copy of the Indian Judgment had been served on IWW in Canada on September 22, 2016.

c. The certified copy of the Indian Judgment was served on IWW on September 22, 2016. IWW could only be in a position to challenge the ex parte Indian Judgment once it was made aware of it.

d. IWW did not commence an appeal or apply to have the Indian Judgment set aside.

[49] In Independence Plaza 1 Associates, L.L.C. v. Figliolini, [2017] O.J. No. 423 the Court of Appeal addressed the question of when time begins to run on a proceeding on a foreign judgment in Ontario. Strathy C.J.O. considered s. 5(1)(a)(iv) of the Limitations Act and confirmed, citing 407 ETR Concession Co. v. Day, 2016 ONCA 709 and Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218, that “appropriate” means “legally appropriate” such that, for example, “a tactical choice to delay commencement of a proceeding to engage in settlement discussions after a loss, injury or damage is known does not make the proceeding inappropriate”.

[50] In respect of the limitation period for an action on a foreign judgment, Strathy C.J.O. held in Figliolini:

77 In the usual case, it will not be legally appropriate to commence a legal proceeding on a foreign judgment in Ontario until the time to appeal the judgment in the foreign jurisdiction has expired or all appeal remedies have been exhausted. The foreign appeal process has the potential to resolve the dispute between the parties. If the judgment is overturned, the debt obligation underlying the judgment creditor’s proceeding on the foreign judgment disappears.

78 This approach is consistent with the decision of the Alberta Court of Appeal in Laasch v. Turenne, 2012 ABCA 32, 522 A.R. 168. In that case, the court determined that the statutory limitation period to commence a proceeding on a Montana judgment began to run even while the creditor sought to register the judgment under Alberta’s reciprocal enforcement legislation. The existence of the reciprocal enforcement statute did not displace the common law process for a proceeding on a foreign judgment. Therefore, the proceeding was “warranted” within the meaning of the discoverability provision of Alberta’s Limitations Act even while the creditor sought registration.

79 To regard a claim based on the foreign judgment as discoverable and appropriate only when all appeals have been exhausted is also consistent with the observations of Rothstein J. in Yugraneft. He stated, at para. 57, that the limitation period to enforce a foreign arbitral judgment under Alberta’s Limitations Act starts to run when the time to appeal the judgment has expired or, where an appeal is taken, the date of the appeal decision.

80 Finally, as the application judge noted, this approach avoids the risk of multiplicity of proceedings by not requiring the judgment creditor to commence a proceeding on a foreign judgment in Ontario before all proceedings in the foreign jurisdiction have run their course. It furthers the purpose of s. 5(1)(a)(iv) of the Limitations Act, 2002 by deterring the unnecessary litigation that may result from commencing in Ontario proceeding on a foreign judgment that is subsequently overturned.

Strathy C.J.O. made it clear at paras. 76 and 82 that the discoverability assessment, including the appropriateness criterion, must take account of the factual context and the plaintiff’s actual circumstances, and that each case must be decided on its own facts.

[51] The evidence of Ms. Chowdhury is that pursuant to section 12 of the [Indian] Limitation Act, 1963, the 30-day limitation period for IWW to file an application for setting aside the Indian Judgment or for appeal of the Indian Judgment could have started only after October 6, 2015 when the certified copy of the Indian judgment was made available by the applicable department of the Indian Court at Calcutta, and that the Indian Judgment would become absolute after the expiry of 30 days from this date, that is, after November 5, 2015. This evidence was not challenged by IWW through opposing affidavit evidence or by cross-examination. The evidence of Ms. Chowdhury is supported by citation of sections from the Indian Limitation Act, 1963. I consider this evidence to be necessary and reliable evidence of when, at the earliest, the time to appeal the Indian Judgment expired, and I accept this evidence. I find that Corona could not have known earlier than November 5, 2015 that the time for appeal of the Indian Judgment had expired.

[52] Although IWW did not take steps to appeal the Indian Judgment, an appeal by IWW, if one was taken, would have had the potential to resolve the dispute between the parties because, if the Indian Judgment was overturned, the debt obligation underlying Corona’s application for recognition of the Indian Judgment would have disappeared. On the facts of this case, I conclude that it was not legally appropriate for Corona to commence a legal proceeding on the Indian Judgment until the time to appeal the judgment in India had expired. In this regard, I rely upon the statements that I have cited from the decision of Strathy C.J.O. in Figliolini.

[53] Corona’s claim was not discovered earlier than November 5, 2015. Corona’s application for recognition of the Indian Judgment was commenced on June 8, 2017, which is before the second anniversary of November 5, 2015. Corona’s claim is not statute barred.

Was IWW denied natural justice in the legal proceedings in India?

[54] IWW submits, in the alternative, that should I find that the Chowdhury affidavit is properly before the court, IWW was denied natural justice in that proper service was never rendered or proven to permit the suit to be heard by the Indian Court.

[55] IWW relies upon statements in the Chowdhury affidavit that the Courts in India require parties to file a specific Affidavit of Service specifying the manner and mode of service and proof of delivery of the summons. IWW submits that there is no proof that an Affidavit of Service was filed and that the fact that the Indian Court proceeded on an ex parte basis to grant judgment against IWW without such proof constitutes a denial of natural justice.

[56] In Beals, the Supreme Court of Canada addressed the grounds upon which a foreign judgment may be impeached, at para. 211:

A foreign judgment may be impeached on the basis that its recognition or enforcement would be contrary to public policy, that it was obtained by fraud, or that the foreign proceedings were contrary to natural justice. The burden is on the party raising one of these defences to prove that it applies; the foreign judgment is presumed to be valid, and there is a basic principle that the domestic court will not permit relitigation of matters tried before the foreign court (J.-G. Castel and J. Walker, Canadian Conflict of Laws (5th ed. (loose-leaf) at p. 14 to 24). At the same time, the receiving court has both the authority and the responsibility to uphold the essential values of the domestic legal system and to protect citizens under the protection of its laws from unfairness. The three impeachment defences are established situations where the domestic court will intervene and refuse to enforce the judgment because the law on which it is based or the way it was obtained is simply too offensive to local notions of what is just and reasonable.

[57] In her affidavit, Ms. Chowdhury provided the following evidence in relation to service of the summons and filing of proof of service:

a. Service of the originating process described as the “Plaint and Summons” was duly effected by way of post both by the department concerned of the Indian court in Calcutta and by the lawyers for Corona. Corona served the Plaint and summons by “Registered Post with Acknowledgment Due” under cover of a letter dated June 5, 2013 which was delivered to IWW in Canada on June 19, 2013. Ms. Chowdhury attached as Exhibit “I” to her affidavit a copy of an email from Michele Melic (representing IWW) dated September 18, 2013 inquiring under what jurisdiction the Indian Court in Calcutta has “in the Case of 123/2013”. Ms. Chowdhury attached as exhibit “J” to her affidavit written confirmation confirming delivery of the registered letter on June 19, 2013. The Indian Court served the Plaint and Summons by “Registered Post with Acknowledgement Due” and such service was received by IWW in Canada on July 30, 2013.

b. Corona obtained a certificate from the Indian Court dated March 28, 2014 that the defendant had not entered an appearance as of March 27, 2014. Corona, through its lawyers, asked for the matter to be listed for hearing as an “Undefended Suit” in accordance with the procedural rules and it was so listed.

c. The Affidavit of Service is required to be filed by the Sheriff’s department of the Indian Court at Calcutta and the fact that it was filed is evident from the certificate issued by the Deputy Sheriff of Calcutta entitled “Mode of Service” that was attached as Exhibit “O” to Ms. Chowdhury’s affidavit. Ms. Chowdhury’s evidence is that the Affidavit of Service filed by the Sheriff’s department is an internal court document.

d. At the hearing of the suit ex parte, the Indian Court considered whether the defendant had entered appearance or filed a written statement. In this connection, relevant documents evidencing service and certificates issued by the Indian Court had been submitted.

[58] In his affidavit in response to this application, Mr. Melic stated that in about July 2013 IWW received a package that had been air mailed to it from the Sheriff’s office of the High Court of India. He appended as an exhibit to his affidavit the envelope and its contents which included the originating process in the High Court at Calcutta.

[59] It is clear from the unchallenged evidence on this application that IWW was duly served with the originating process. I accept the evidence from Ms. Chowdhury that the Indian Court was satisfied that service had been duly effected when it heard the “Undefended Suit” against IWW. The Indian Court proceeded to grant judgment and followed its own procedures in so doing.

[60] IWW has failed to discharge its burden of proving that the proceedings that led to the Indian Judgment were contrary to natural justice.

Disposition

[61] For the forgoing reasons, I order and adjudge:

a. The Indian Judgment in favour of Corona and against IWW is recognized.

b. IWW shall pay to Corona an amount in Canadian dollars sufficient to purchase $86,638 in United States dollars at a bank in Ontario listed in Schedule I to the Bank Act (Canada) at the close of business on the first day on which the bank quotes a Canadian dollar rate for the purchase of United States dollars before the day payment of the obligation is received by Corona.

c. IWW shall pay to Corona pre-judgment interest on the amount in subparagraph b. at the rate of 12% per annum as ordered in the Indian Judgment from April 20, 2015 to the date hereof.

d. IWW shall pay to Corona post-judgment interest at the rate of 12% per annum in accordance with the Indian Judgment.

[62] If the parties are unable to resolve the question of costs, Corona is directed to make written submissions within 20 days. IWW is directed to make responding submissions within 15 days of receipt of Corona’s submissions. If so advised, Corona may make brief reply submissions within five days of receipt of IWW’s responding submissions.

Cavanagh J.

Released: June 21, 2018

[^1] The copy of the statute that is appended as an exhibit to Ms. Chowdhury’s affidavit includes a footnote that reads “The words ‘on which the decree or order is founded’ omitted by Act No. 46 of 1999 w.e.f. 6.6.2002.”

Corona Steel Industry Private Ltd. v. Integrity Worldwide Inc., 2018 ONSC 3901

Case Summary

Introduction

Procedural History

Analysis

Is the affidavit of Ms. Chowdhury inadmissible in evidence on this application?

Has Corona proven that the Indian Court properly assumed jurisdiction because there is a real and substantial connection between the Indian Court and either (i) the subject matter of the action in India, or (ii) IWW?

Is this application for recognition and enforcement of the Indian Judgment statute barred because it was commenced after the second anniversary of the day on which the claim was discovered?

Was IWW denied natural justice in the legal proceedings in India?

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Financial Outcomes

Issues

Statutory Provisions 4

Legal Tests 3

Legislation 2