H.M.B. Holdings Limited v. The Attorney General of Antigua and Barbuda
[Indexed as: H.M.B. Holdings Ltd. v. Antigua and Barbuda (Attorney General)]
Ontario Reports
Ontario Superior Court of Justice
Perell J.
March 4, 2019
145 O.R. (3d) 515 | 2019 ONSC 1445
Case Summary
Conflict of laws — Reciprocal enforcement of judgments — Applicant bringing action in British Columbia to enforce Antiguan judgment — Respondent not attorning to jurisdiction and applicant obtaining default judgment — Applicant applying in Ontario under Reciprocal Enforcement of Judgments Act to enforce B.C. judgment — Application dismissed — Respondent not carrying on business in B.C. by virtue of presence of four Authorized Representatives of its Citizenship by Investment Program — Respondent having good defence if action were brought on "original judgment" — "Original judgment" being Antiguan judgment as B.C. judgment was derivative of that judgment — Original judgment being from non-reciprocating jurisdiction — Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5.
The applicant obtained a judgment against the respondent in Antigua in 2014. It brought an action in British Columbia to enforce that judgment. The respondent did not attorn to the jurisdiction of the B.C. court. The plaintiff obtained default judgment. It then brought an application in Ontario under the Reciprocal Enforcement of Judgments Act to register the B.C. judgment.
Held, the application should be dismissed.
The B.C. judgment could not be registered in Ontario under the Reciprocal Enforcement of Judgments Act as the Antiguan government did not carry on business in British Columbia. It had no physical presence in B.C. and did not carry on any sustained business activity there. The four authorized representatives of Antigua's Citizenship by Investment Program in British Columbia carried on business on their own behalf and not as representatives or agents of the Antiguan government, as they were paid what amounted to a finder's fee for directing applicants to apply for citizenship under the program. Moreover, the Citizenship by Investment Program was not a business activity.
If that conclusion was incorrect, then the Antiguan government could rely on s. 3(g) of the Act to resist registration of the B.C. judgment as it would have a good [page516] defence if an action were brought on the "original judgment". The "original judgment" was the Antiguan judgment, as the B.C. judgment was derivative of that judgment. The original judgment was from a non-reciprocating jurisdiction.
Owen v. Rocketinfo, Inc., [2008] B.C.J. No. 2374, 2008 BCCA 502, [2009] 2 W.W.R. 418, 86 B.C.L.R. (4th) 64, 263 B.C.A.C. 91, 305 D.L.R. (4th) 370, 171 A.C.W.S. (3d) 590, apld
Girsberger v. Kresz, 1998 CanLII 27834 (MB QB), [1999] M.J. No. 43, [1999] 7 W.W.R. 761, 135 Man. R. (2d) 34, 30 C.P.C. (4th) 286, 85 A.C.W.S. (3d) 1042 (Q.B.); Solehdin v. Stern Estate, [2014] B.C.J. No. 3027, 2014 BCCA 482, 66 C.P.C. (7th) 62, 364 B.C.A.C. 128, 247 A.C.W.S. (3d) 554, consd
Other cases referred to
Acme Video Inc. v. Hedges (1993), 1993 CanLII 8553 (ON CA), 12 O.R. (3d) 160, [1993] O.J. No. 585, 38 A.C.W.S. (3d) 1129 (C.A.), revg (1992), 1992 CanLII 7653 (ON SC), 10 O.R. (3d) 503, [1992] O.J. No. 1382, 34 A.C.W.S. (3d) 598 (Gen. Div.); Beals v. Saldanha, [2003] 3 S.C.R. 416, [2003] S.C.J. No. 77, 2003 SCC 72, 234 D.L.R. (4th) 1, 314 N.R. 209, J.E. 2004-127, 182 O.A.C. 201, 39 B.L.R. (3d) 1, 39 C.P.C. (5th) 1, 113 C.R.R. (2d) 189, 2004 CCLG para. 24-646, 127 A.C.W.S. (3d) 648; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; Blue Mountain Resorts Ltd. v. Bok (2013), 114 O.R. (3d) 321, [2013] O.J. No. 520, 2013 ONCA 75, 359 D.L.R. (4th) 276, 302 O.A.C. 124, 5 C.C.E.L. (4th) 151, [2013] OLRB Rep. January/February 196, 223 A.C.W.S. (3d) 967, 2013 CSHG para. 95,883; Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, 1996 CanLII 149 (SCC), [1996] 3 S.C.R. 727, [1996] S.C.J. No. 111, 140 D.L.R. (4th) 463, 203 N.R. 321, [1997] 2 W.W.R. 153, J.E. 96-2218, 82 B.C.A.C. 161, 27 B.C.L.R. (3d) 203, 66 A.C.W.S. (3d) 1127, EYB 1996-67134; Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, 343 D.L.R. (4th) 577, 429 N.R. 217, J.E. 2012-788, 291 O.A.C. 201, 91 C.C.L.T. (3d) 1, 17 C.P.C. (7th) 223, 10 R.F.L. (7th) 1, EYB 2012-205198, 2012 SOACQ para. 10,118, 2012EXP-1452, 212 A.C.W.S. (3d) 712; Commission de la Construction du Québec v. Access Rigging Services Inc. (2010), 104 O.R. (3d) 313, [2010] O.J. No. 5055, 2010 ONSC 5897, 7 C.P.C. (7th) 365, 195 A.C.W.S. (3d) 680 (S.C.J.); Four Embarcadero Center Venture v. Kalen (1988), 1988 CanLII 4828 (ON SC), 65 O.R. (2d) 551, [1988] O.J. No. 411, 27 C.P.C. (2d) 260, 10 A.C.W.S. (3d) 9 (H.C.J.); George v. Harris, [2000] O.J. No. 1762, 97 A.C.W.S. (3d) 225, 2000 CarswellOnt 1714 (S.C.J.); Holder v. Wray, [2018] O.J. No. 5724, 2018 ONSC 6133 (S.C.J.); Independence Plaza 1 Associates, L.L.C. v. Figliolini (2017), 136 O.R. (3d) 202, [2017] O.J. No. 243, 2017 ONCA 44, 410 D.L.R. (4th) 747, 275 A.C.W.S. (3d) 166; King v. Drabinsky (2008), 91 O.R. (3d) 616, [2008] O.J. No. 2961, 2008 ONCA 566, 295 D.L.R. (4th) 727, 276 O.A.C. 22, 58 C.P.C. (6th) 223, 168 A.C.W.S. (3d) 79; Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520, [2004] O.J. No. 1700, 239 D.L.R. (4th) 683, 186 O.A.C. 20, 50 C.P.C. (5th) 266, 3 R.F.L. (6th) 387, 130 A.C.W.S. (3d) 850 (C.A.); Pro Swing Inc. v. Elta Golf Inc., [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52, 2006 SCC 52, 273 D.L.R. (4th) 663, 354 N.R. 201, J.E. 2006-2235, 218 O.A.C. 339, 41 C.P.C. (6th) 1, 52 C.P.R. (4th) 321, EYB 2006-111169, 2006 DFQ para. 10,343, 152 A.C.W.S. (3d) 70; R. v. Dubois, 1935 CanLII 1 (SCC), [1935] S.C.R. 378, [1935] S.C.J. No. 8, [1935] 3 D.L.R. 209; R. v. Goldman, 1979 CanLII 60 (SCC), [1980] 1 S.C.R. 976, [1979] S.C.J. No. 136, 108 D.L.R. (3d) 17, 30 N.R. 453, 51 C.C.C. (2d) 1, 13 C.R. (3d) 228, 16 C.R. (3d) 330, 1979 CCAN para. 10,014; R. v. McIntosh (1995), 1995 CanLII 124 (SCC), 21 O.R. (3d) 797, [1995] 1 S.C.R. 686, [1995] S.C.J. No. 16, 178 N.R. 161, J.E. 95-457, 79 O.A.C. 81, 95 C.C.C. (3d) 481, 36 C.R. (4th) 171, 26 W.C.B. (2d) 201, 1995 CCAN para. 10,010; R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652, [1999] S.C.J. No. 18, 171 D.L.R. (4th) 1, 237 N.R. 157, J.E. 99-878, 133 C.C.C. (3d) 129, 24 C.R. (5th) 97, 61 C.R.R. (2d) 245, [page517] 41 W.C.B. (2d) 406, 1999 CCAN para. 10,018; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC para. 210-006, 76 A.C.W.S. (3d) 894, D.T.E. 98T-154; Stern Estate v. Solehdin, [2011] O.J. No. 1696, 2011 ONCA 286, 75 C.B.R. (5th) 69, 200 A.C.W.S. (3d) 1007, affg [2010] O.J. No. 863, 2010 ONSC 1012, 65 C.B.R. (5th) 283, 186 A.C.W.S. (3d) 383 (S.C.J.) [Leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 245]; T.D.I. Hospitality Management Consultants Inc. v. Browne, 1994 CanLII 10958 (MB CA), [1994] M.J. No. 448, 117 D.L.R. (4th) 289, [1994] 9 W.W.R. 153, 95 Man. R. (2d) 302, 28 C.P.C. (3d) 232, 50 A.C.W.S. (3d) 206 (C.A.); United States of America v. Yemec, [2010] O.J. No. 5349, 2010 ONCA 845, 94 C.P.C. (6th) 274, 91 W.C.B. (2d) 692 (C.A.), varg (2010), 100 O.R. (3d) 321, [2010] O.J. No. 2411, 2010 ONCA 414, 270 O.A.C. 219, 320 D.L.R. (4th) 96, 87 C.P.C. (6th) 1, 189 A.C.W.S. (3d) 673, varg (2009), 2009 CanLII 44418 (ON SC), 97 O.R. (3d) 409, [2009] O.J. No. 3546, 80 C.P.C. (6th) 276, 179 A.C.W.S. (3d) 922 (S.C.J.); Victoria (City) v. Bishop of Vancouver Island (1921), 1921 CanLII 568 (UK JCPC), 59 D.L.R. 399, [1921] 2 A.C. 384, [1921] 3 W.W.R. 214 (J.C.P.C.); Wilson v. Hull, [1995] A.J. No. 896, 1995 ABCA 374, 128 D.L.R. (4th) 403, [1996] 2 W.W.R. 244, 34 Alta. L.R. (3d) 237, 174 A.R. 81, 41 C.P.C. (3d) 188, 58 A.C.W.S. (3d) 44; Yaiguaje v. Chevron Corp., [2015] 3 S.C.R. 69, [2015] S.C.J. No. 42, 2015 SCC 42, 388 D.L.R. (4th) 253, 474 N.R. 1, J.E. 2015-1413, 335 O.A.C. 201, 38 B.L.R. (5th) 171, 22 C.C.L.T. (4th) 1, 73 C.P.C. (7th) 1, EYB 2015-256214, 2015 BCLG para. 79,082, 2015 OCLG para. 51,895, 2015 CCLR para. 201,239, 2015EXP-2554, 2015 ACLG para. 79,658, 256 A.C.W.S. (3d) 583; Yaiguaje v. Chevron Corp. (2018), 14 O.R. (3d) 1, [2018] O.J. No. 2698, 2018 ONCA 472, 423 D.L.R. (4th) 687, 2018 CCSG para. 51,683, 2018 BCLG para. 79,246, 2018 OCLG para. 52,059, 2018 CCLR para. 201,403, 2018 ACLG para. 79,822, 293 A.C.W.S. (3d) 741; Yip v. HSBC Holdings plc. (2018), 141 O.R. (3d) 641, [2018] O.J. No. 3681, 2018 ONCA 626, 425 D.L.R. (4th) 594, 82 B.L.R. (5th) 1, 295 A.C.W.S. (3d) 885, 2018 CSLR para. 900-745, affg [2017] O.J. No. 4729, 2017 ONSC 5332, 2018 CSLR para. 900-716 (S.C.J.); York (Regional Municipality) v. Winlow (2009), 99 O.R. (3d) 337, [2009] O.J. No. 3691, 2009 ONCA 643, 265 O.A.C. 326, 86 M.V.R. (5th) 171
Statutes referred to
Court Order Enforcement Act, R.S.B.C. 1996, c. 78
Enforcement of Canadian Judgments and Decrees Act, S.B.C. 2003, c. 29
Limitation Act, S.B.C. 2012, c. 13, s. 7, (b)
Limitation Act, 2002, S.O. 2002, c. 24, Sch. B, s. 4
Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5, ss. 2(1) [as am.], 3, (b), (g)
State Immunity Act, R.S.C. 1985, c. S-18
The Reciprocal Enforcement of Judgments Act, C.C.S.M., c. J20
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.05, 25.11, 38.12, 57
APPLICATION for an order under the Reciprocal Enforcement of Judgments Act.
James Lincoln J. Caylor and Grace M. McKeown, for applicant.
Steve J. Tenai and Sanj Sood, for respondent. [page518]
PERELL J.: —
A. Introduction and Overview
[1] On this application, H.M.B. Holdings Limited seeks an order under the Reciprocal Enforcement of Judgments Act[^1] against the Attorney General of Antigua and Barbuda, which is to say an order against the Antiguan Government, which is represented by its Attorney General.
[2] In 2007, Antigua and Barbuda, a country comprised of several islands in the Caribbean with a total population of approximately 90,000 people, expropriated a beachfront resort property owned by H.M.B. Holdings pursuant to the country's Land Acquisition Act. There was litigation about the expropriation and about the compensation for the forced taking. The litigation eventually was settled by a judgment of the Privy Council issued on February 26, 2014 and by a final Privy Council order dated May 27, 2014.
[3] On October 25, 2016, H.M.B. Holdings commenced an action in the Supreme Court of British Columbia to enforce the Privy Council's judgment. It is to be noted that in 2016, under British Columbia's Limitation Act,[^2] the action to enforce the Privy Counsel's judgment was timely because there is a ten-year limitation period to enforce an foreign judgment in British Columbia, but, in contrast, it is to be noted that in 2016, an action in Ontario to enforce the judgment would have been untimely under Ontario's Limitation Act, 2002,[^3] which has a general limitation period of two years.
[4] The Antiguan Government, which has no residency in British Columbia, did not attorn to the jurisdiction of the British Columbia courts, and it did not defend the action, and on February 24, 2017, H.M.B. Holdings brought a motion in British Columbia for a default judgment. On April 7, 2017, the default judgment was entered in British Columbia.
[5] On May 16, 2018, pursuant to the Reciprocal Enforcement of Judgments Act, H.M.B. Holdings commenced an application in Ontario to enforce the 2017 judgment of the British Columbia court.
[6] The Antiguan Government resisted the application on two grounds. First, it submitted that the preconditions for [page519] enforcement found in s. 3(b) and (g) of the Act had not been satisfied. To be more precise, the Antiguan Government submitted that under s. 3(b) of the Reciprocal Enforcement of Judgments Act, the British Columbia judgment cannot be registered in Ontario because Antigua and Barbuda did not carry on business in British Columbia and did not voluntarily appear or otherwise submit to the jurisdiction of the Supreme Court of British Columbia. Second, it submitted that under s. 3(g) of the Act,the British Columbia judgment cannot be registered in Ontario because the Antiguan Government would have a good defence in Ontario if an action were brought on the "original judgment", which the Antiguan Government submits was the judgment of the Privy Council.
[7] On February 22, 2019, H.M.B. Holdings brought on its application and the Antiguan Government, in addition to defending the application, brought a cross-motion to strike certain paragraphs of the reply affidavit delivered by H.M.B. Holdings.
[8] For the reasons that follow, the Antiguan Government's motion to strike paragraphs in the reply affidavit is granted with costs of $2,500, all inclusive, and H.M.B. Holding's application under the the Reciprocal Enforcement of Judgments Act is dismissed with costs of $30,000, all inclusive. (The parties had agreed on the costs awards.)
B. Legislative Background
[9] The relevant provisions of the Reciprocal Enforcement of Judgments Act are set out below:
Definitions
1(1) In this Act,
"judgment" means a judgment or an order of a court in any civil proceedings whereby any sum of money is payable, and includes an award in proceedings on an arbitration if the award has, in pursuance of the law in force in the province or territory where it was made, become enforceable in the same manner as a judgment given by a court therein;
"judgment creditor" means the person by whom the judgment was obtained, and includes the executors, administrators, successors and assigns of that person;
"judgment debtor" means the person against whom the judgment was given, and includes any person against whom the judgment is enforceable in the place where it was given;
"original court", in relation to a judgment, means the court by which the judgment was given;
"registering court", in relation to a judgment, means the court in which the judgment is registered under this Act. [page520]
Powers of court, how exercised
(2) Subject to the rules of court, any of the powers conferred by this Act on a court may be exercised by a judge of the court.
Registration of judgment
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.
Notice of application to register
(2) Reasonable notice of the application shall be given to the judgment debtor in all cases in which the judgment debtor was not personally served with process in the original action and did not appear or defend or otherwise submit to the jurisdiction of the original court, but in all other cases the order may be made without notice.
Registration of judgment
(3) The judgment may be registered by filing with the registrar or clerk of the registering court an exemplification or a certified copy of the judgment, together with the order for such registration, whereupon the judgment shall be entered as a judgment of the registering court.
Conditions of registration
- No judgment shall be ordered to be registered under this Act if it is shown to the registering court that,
(a) the original court acted without jurisdiction; or
(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
(c) the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, despite the fact that the judgment debtor was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court; or
(d) the judgment was obtained by fraud; or
(e) an appeal is pending, or the judgment debtor is entitled and intends to appeal against the judgment; or
(f) the judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason would not have been entertained by the registering court; or
(g) the judgment debtor would have a good defence if an action were brought on the original judgment. [page521]
Effect of registration
- Where a judgment is registered under this Act,
(a) the judgment is, as from the date of the registration, of the same force and effect and, subject to this Act, proceedings may be taken thereon as if it had been a judgment originally obtained or entered up in the registering court on the date of the registration; and
(b) the registering court has the same control and jurisdiction over the judgment as it has over judgments given by itself; and
(c) the reasonable costs of and incidental to the registration of the judgment, including the costs of obtaining an exemplification or certified copy thereof from the original court, and of the application for registration, are recoverable in like manner as if they were sums payable under the judgment, such costs to be first taxed by the proper officer of the registering court, and his or her certificate thereof endorsed on the order for registration.
Application of Act
- Where the Lieutenant Governor is satisfied that reciprocal provision has been or will be made by any other province or territory of Canada for the enforcement within that province or territory of judgments obtained in the Superior Court of Justice, the Lieutenant Governor may direct that this Act applies to that province or territory, and thereupon this Act applies accordingly.
Effect of Act
- Nothing in this Act deprives any judgment creditor of the right to bring an action for the recovery of the amount of a judgment instead of proceeding under this Act.
Note: As of April 30, 1999, this Act applies to Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland, Nova Scotia, Nunavut, Prince Edward Island, Saskatchewan, the Northwest Territories and the Yukon Territory. See: O. Reg. 322/92, as amended by O. Reg. 298/99.
C. Procedural Background
[10] On May 16, 2018, H.M.B. Holdings brought its application in Ontario pursuant to the Reciprocal Enforcement of Judgments Act. It was supported by the affidavit of Natalia M. Querard sworn on May 8, 2018.
[11] Ms. Querard of New York City in the United States of America is the Managing Director of H.M.B. Holdings.
[12] In response to the application, the Antiguan Government delivered an affidavit from Nadia Spencer-Henry of St. John's, Antigua and Barbuda sworn on December 6, 2018 and an affidavit from Brandon Carter sworn on December 7, 2018.
[13] Ms. Spencer-Henry is the debt manager in the Ministry of Finance of the Government of Antigua and Barbuda. [page522]
[14] Mr. Carter is a student-at-law at Aird & Berlis LLP, the lawyers for the Antiguan Government. Mr. Carter conducted internet-based research to obtain information on citizenship by investment programs.
[15] On December 21, 2018, Ms. Querard swore a reply affidavit.
[16] There were no cross-examinations.
[17] On February 1, 2019, H.M.B. Holdings delivered its factum for the application.
[18] On February 12, 2019, the Antiguan Government brought a motion for an order striking paras. 4 (last sentence), 5-8, 12-14, 16-17 and 34-35 of Ms. Querard's reply affidavit and paras. 2 (second sentence), 3, 5 (third sentence), 11 (third sentence), 12-16, 19, 20 and 66 of H.M.B. Holding's factum. The Antiguan Government also delivered its factum for the motion to strike.
[19] On February 14, 2019, the Antiguan Government delivered its responding factum for the application.
[20] On February 19, 2019, H.M.B. Holdings delivered its reply factum for the application and its responding factum for the motion to strike.
[21] On February 21, 2019, the Antiguan Government delivered a sur-reply factum for the application.
D. The Motion to Strike
[22] The Antiguan Government submits that paras. 4 (last sentence), 5-8, 12-14, 16-17 and 34-35 of Ms. Querard's reply affidavit and paras. 2 (second sentence), 3, 5 (third sentence), 11 (third sentence), 12-16, 19, 20 and 66 of H.M.B. Holding's factum are irrelevant, scandalous, frivolous, hearsay and/or vexatious evidence or argument that were adduced to add colour and impugn the Antiguan Government's character. It also submits that Ms. Querard's reply affidavit is not proper reply evidence. The impugned paragraphs concern the circumstances under which the Antiguan Government sought to acquire H.M.B. Holding's resort property before the government resorted to an expropriation.
[23] Relying on rules 1.05, 25.11, 38.12 and 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the Antiguan Government seeks an order striking the impugned paragraphs.
[24] Pursuant to rule 38.12, rule 25.11, the rule for pleadings, under which a pleading that may prejudice or delay the fair trial of the action or that is scandalous, frivolous, vexatious or an abuse of process of the court may be struck, applies with necessary modifications with respect to any document filed on an application. [page523]
[25] For the purpose of rule 25.11, the term "scandalous" includes allegations that are that are irrelevant, argumentative, simply inserted for colour, or inserted to impugn the behaviour or character of the other party.[^4]
[26] While the circumstances that led to the Privy Council's judgment that was enforced by a judgment of the Supreme Court of British Columbia provide the interesting and colorful background context of a dispute that has a history going back to 1995, these background facts are of very little, if any, relevance to the one factual issue and the one largely technical legal issue that must be determined on this application. To be more precise, the historical background circumstances of the dispute between the parties are irrelevant to the factual issue related to s. 3(b) of the Reciprocal Enforcement of Judgments Act of whether the Antiguan Government carries on business in British Columbia and to the legal issue of whether it is the British Columbia court's or the Privy Council's judgment that is the "original judgment" under s. 3(g) of the Act.
[27] The impugned paragraphs are scandalous in the sense described by rules 25.11 and 38.12; therefore, I conclude that the Antiguan Government's preliminary motion about the evidence for the motion should be granted.
E. Facts
[28] The relevant factual circumstances concern the major events that led to the judgments of the Privy Council and the Supreme Court of British Columbia and also the carrying on business connection, if any, between the Antiguan Government and the province of British Columbia.
[29] H.M.B. Holdings is a private company incorporated in Antigua and Barbuda. Natalia M. Querard is its managing director.
[30] From 1971 to 2007, H.M.B. Holdings owned a 108-acre beachfront property on the Island of Antigua, which had been developed as a resort hotel known as the Half Moon Bay Resort.
[31] In September 1995, Hurricane Luis (a category-five storm) destroyed the resort. H.M.B. Holdings wished to redevelop the resort. The Antiguan Government had different aspirations for the property.
[32] In 2002, the House of Representatives and Senate of Antigua and Barbuda approved the compulsory acquisition of the resort property pursuant to the country's Land Acquisition Act. [page524]
[33] The Antiguan Government took possession of the property in 2007.
[34] There was a dispute about the expropriation and about the compensation for the expropriation. Litigation followed that was ultimately to culminate in an appeal to the Privy Council.
[35] While the dispute between H.M.B. Holdings and the Antiguan Government was before the courts, in October 2013, pursuant to the Antigua and Barbuda Citizenship by Investment Act, 2013 (for which regulations were made in 2016), the Antiguan Government introduced the Citizenship by Investment Program. The purpose of the program was to encourage investment in Antigua and Barbuda by granting investors (and their families) citizenship. Under the program, an investor may acquire citizenship in three ways: (1) by a payment of US$100,000 to Antigua's National Development Fund; (2) by a purchase of at least US$400,000 in approved real estate; and (3) an investment of at least US$1,500,000 in an approved business.
[36] Under the regulations of the Antigua and Barbuda Citizenship by Investment Act, 2013, "agent" is defined to mean a person who has applied for and been granted an Agent's Licence and who is authorized to act on behalf of applicants in relation to a citizenship by investment application. The Agent's Licence is granted by a Minister of the Antiguan Government.
[37] Under the regulations of the Antigua and Barbuda Citizenship by Investment Act, 2013, the Citizenship by Investment Unit, which is the office established to manage the program may by contract appoint representatives and service providers to promote, advertise and disseminate information on the program. No promotional information or advertisement about the program shall be published or disseminated unless it complies with the guidelines issued by the unit.
[38] Returning to the dispute about the expropriation, the Privy Council issued a judgment on February 26, 2014 and a final order dated May 27, 2014. The Privy Council fixed the compensation at US$26,616,998.10. It ordered interest to be paid as follows: (a) US$9,560,060 representing interest on the judgment at the rate of 10.25 per cent from July 23, 2007 to January 22, 2011; and (b) interest on the judgment thereafter at the rate of 4 per cent per year until payment.
[39] In December 2015, for a purchase price of US$23 million, the Antiguan Government sold the resort property to Replay Destinations Limited, now operating as Freetown Destination Resorts Limited. Freetown Destination Resorts Limited is an Antiguan corporation that is related to Replay Resorts Inc., a company incorporated in British Columbia involved in the [page525] business of building beachfront hotels and resorts. Replay Resorts is a subsidiary of Replay Management Ltd., a company also incorporated in British Columbia.
[40] Between 2015 and 2017, the Antiguan Government paid US$23,823,970 to H.M.B. Holdings, but there is a dispute between the parties about the balance remaining to be paid. The dispute concerns whether the payments already made should be applied first to reduce the principal or be first paid on account of interest. The issue as to how much remains owing is before The Eastern Caribbean Supreme Court in the High Court of Justice -- Antigua and Barbuda.
[41] On October 25, 2016, H.M.B. Holdings commenced an action in the Supreme Court of British Columbia to enforce the Privy Council's judgment against the Antiguan Government. British Columbia has a basic limitation period of ten years to start an action to enforce a foreign judgment for the payment of money.[^5]
[42] At the time of the action in British Columbia, the Antiguan Government has no physical presence in the province. It does not have a consulate, an office, or any premises in the province. It has no employees or agents in the province, and it does not direct any marketing specifically for residents of British Columbia. The Antiguan Government denies that it carries on business or that it has any commercial activities of any recurring or sustained nature in the province.
[43] At the time of the action in British Columbia, under the Antigua and Barbuda Citizenship by Investment Act, 2013, the Antiguan Government had contracts with four Authorized Representatives with businesses, premises, and employees in British Columbia, namely, (1) Bishop Investment Corporation in Vancouver; (2) Hawking Immigration International in Burnaby; (3) Safe Sail Consulting Ltd. in West Vancouver; and (4) Wailian Investment Group Inc., in Vancouver. The four authorized representatives were not licensed agents under the program. The authorized agents were paid what amounts to something akin to a finder's fee by directing applicants to apply for citizenship under the program.
[44] At the time of the action in British Columbia, the Antiguan Government, had no residency in British Columbia and it did not attorn to the jurisdiction of the British Columbia courts. It also did not defend the action brought by H.M.B Holdings to enforce the Privy Council's judgment. [page526]
[45] On February 24, 2017, H.M.B. Holdings brought a motion for a default judgment, and on April 7, 2017, the default judgment was entered in British Columbia. The judgment was for $28,765,975.41 plus an additional amount for interest outstanding at an annual rate of 4 per cent from December 24, 2015 to April 6, 2017 of $1,475,337.19 for a total judgment of $30,241,312.60.
[46] On June 28, 2017, the British Columbia judgment was served on the Antiguan Government pursuant to the State Immunity Act.[^6] The Antiguan Government took no steps to appeal or to have the British Columbia judgment set aside or revoked within 60 days pursuant to the State Immunity Act.
[47] On May 16, 2018, pursuant to the Reciprocal Enforcement of Judgments Act, H.M.B. Holding commenced an application in Ontario to enforce the 2017 judgment of the British Columbia court. Pursuant to s. 2(1) of the Reciprocal Enforcement of Judgments Act, where a judgment has been given in a court in a reciprocating state (such as British Columbia) the judgment creditor may apply 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. Although the British Columbia judgment was for a higher sum, H.M.B. Holdings seeks to register a judgment for $24,361,764.89, which is the sum it submits is the balance outstanding under the Privy Council's judgment.
[48] It is to be noted that pursuant to s. 4 of the Limitations Act, 2002, had H.M.B. Holdings brought a direct action to enforce the judgment of the Privy Council, the Antiguan government would have had a limitations-period defence to the action. In Ontario, the basic two-year limitation period applies to an action to recognize and enforce a foreign judgment.[^7]
F. Did the Antiguan Government Carry on Business in British Columbia?
[49] The first issue to determine is whether the Antiguan Government carried on business in British Columbia at the time when H.M.B. Holdings brought its action in British Columbia. If the Antiguan Government did not carry on business in British Columbia, there is no dispute between the parties that the British [page527] Columbia judgment cannot be registered in Ontario under the Reciprocal Enforcement of Judgments Act.[^8]
[50] Whether a party is carrying on business in a province is a question of fact.[^9] The case law establishes that for a party to be carrying on business within a province, he or she must have a meaningful presence in the province and that presence must be accompanied by a degree of business activity over a sustained period of time.[^10]
[51] In Club Resorts Ltd. v. Van Breda,[^11] Justice LeBel stated that carrying on business in a jurisdiction requires some form of actual, not only virtual presence in the jurisdiction, such as maintaining an office there or regularly visiting the territory of the particular jurisdiction. He said that active advertising in the jurisdiction and a presence of the World Wide Web that is the Internet would not suffice to establish that a corporation is carrying on business in a particular jurisdiction. He warned against allowing a virtual presence creating a universal presence for carrying on business.
[52] In my opinion, the Antiguan Government was not carrying on business in British Columbia. It had no physical presence in the province, and it did not carry on any sustained business activity in the province. The four authorized representatives in British Columbia were undoubtedly carrying on business in British Company, but the representatives were not agents or licensed agents of the Antiguan Government, and they were carrying on their own businesses that were independent of the businesses of the Antiguan Government, even if one assumes that the Citizenship by Investment Program is a business as distinct from a government activity that has a commercial aspect to it. [page528]
[53] Moreover, it would be wrong to assume that the Citizenship by Investment Program is a business activity. It is rather a government program enacted by the Antiguan Government. The program is comparable to programs and policies used by governments around the world, including the province of Quebec and until relatively recently the Canadian federal government. These programs offer permanent resident status or citizenship to qualified applicants who undertake to make investments in their new home country. The core purpose of the Citizenship by Investment Program is not one of the Antiguan Government carrying on business outside of Antigua and Barbuda but its purpose is to recruit new citizens to start up business in Antigua and Barbuda.
[54] The Antiguan Government's program is not particularly focused on any jurisdiction -- other than Antigua and Barbuda -- where it appears to have been quite successful in bring entrepreneurs to the country. The program has no particular focus on British Columbia or on Canada for that matter. Since the inception of the Program, there have been 1,547 applications to the Antiguan Government from around the world of which only nine have been from persons born in Canada.
[55] I, therefore, conclude that because it has been shown that the judgment debtor, i.e., the Antiguan Government, was not carrying on business within British Columbia, therefore, the British Columbia court's judgment cannot be registered under Ontario's Reciprocal Enforcement of Judgments Act.
G. Would the Antiguan Government Have a Good Defence if an Action Were brought on the Original Judgment?
[56] The above finding is dispositive of this application. However, assuming that I am incorrect in concluding that the Antiguan Government did not carry on business in British Columbia, I turn to the second issue of whether the Antiguan Government would have a good defence if an action were brought on the "original judgment".
[57] The dispute here between the parties is whether "original judgment" refers to the 2017 judgment of the Supreme Court of British Columbia, which is H.M.B. Holding's position, or whether "original judgment" refers to the 2016 judgement of the Privy Council, which is the Antiguan Government's position.
[58] Before beginning the exercise of statutory interpretation that will resolve this dispute, the law about the enforcement of judgments apart from the Reciprocal Enforcement of Judgments Act should be noted.
[59] At common law, a foreign judgment for the payment of money is not immediately enforceable as an order in the domestic [page529] court; rather, the party wishing to enforce a foreign judgment must commence new proceedings in the domestic court. In effect, the foreign judgment is a debt that can be enforced by a cause of action to claim payment of the debt, and absent evidence of fraud or of a violation of natural justice or of public policy, the enforcing court is not interested in the substantive or procedural law of the foreign jurisdiction in which the monetary judgment sought to be enforced domestically was rendered.[^12] For the purposes of limitation periods, a foreign judgment is treated as a simple contract (not a specialty) and is subject to the applicable limitation period.[^13] Although the creation of new defences is possible,[^14] there is a relatively small list of defences to the enforcement of a foreign judgment. The traditional defences to the enforcement of a foreign judgment are: fraud in obtaining the judgment; violation of the principles of natural justice, including whether the defendant received proper notice; or violation of domestic public policy.[^15]
[60] Before beginning the exercise of statutory interpretation, it also should be repeated, as noted above, that with H.M.B. Holdings obtaining a judgment from the Privy Council in 2016, then it would have had two years to bring an action in Ontario to enforce the judgment. This observation follows because there is no reciprocal enforcement of judgments statute between Ontario and the Antigua and Barbuda, and, thus, a common law action to enforce a foreign judgment would have been the only direct way to enforce the Privy Council's judgment.
[61] It should also be noted that had H.M.B. Holdings brought a direct action to enforce the Privy Council's judgment in Ontario and have the judgment, in effect, registered as an Ontario judgment, [page530] the action would have been governed by the common law that governs the enforcement of a foreign judgment. The approach, however, chosen by H.M.B. Holdings was different, and it sought to register -- not the Privy Council's judgment -- but the British Columbia court's judgment. As the discussion below will reveal, this approach has been colourfully described by the Antiguan Government as using the Reciprocal Enforcement of Judgments Act to register a "ricochet judgment" -- a judgment that is derivative of another judgment.
[62] Turning now to the second major issue in the immediate case, when a court is called upon to interpret a statute, its task is to discover the intention of the legislator as expressed in the language of the statute.[^16] The approach to interpretation is teleological or purposeful, and to interpret a statute, the words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the statute, the object of the statute and the intention of the legislator.[^17]
[63] To interpret a statute, the court must in every case undertake a contextual and purposive analysis to determine whether real ambiguity exists, i.e., whether the language is reasonably capable of more than one meaning.[^18]
[64] If the sense of the words of the statute is unclear or ambiguous and admits of two interpretations, then the interpretation that would defeat the purpose of the legislation or that would have absurd, unfair, or unreasonable consequences is to be avoided.[^19] Where the grammatical and ordinary sense of words when read in their context including the purpose and objective of the statute leads to some consequence that is repugnant or inconsistent with the purposes of the statute, the ordinary meaning may be departed from but only if there is a plausible alternative within the language used by the legislator.[^20] [page531]
[65] It is presumed that the legislator does not intend absurd consequences and an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or it is incompatible with other provisions or with the object of the legislative enactment, and where there are competing plausible constructions, a statute should be interpreted in a way that avoids absurd results.[^21]
[66] In the immediate case, there is ambiguity in the meaning of the words "original judgment" in s. 3(g) of the Reciprocal Enforcement of Judgments Act and those words admit of two interpretations.
[67] For its interpretation, H.M.B. Holdings has a reasonable argument that a contextual analysis of the language of the statute reveals that the words "original judgment" must refer to the court of the jurisdiction that has a reciprocal connection with Ontario in enforcing each other's judgments and in the case at bar that reciprocating court is the Supreme Court of British Columbia.
[68] That reasonable interpretation of interpretation of the words "original judgment" will undoubtedly operate as the Ontario legislature intended the Reciprocal Enforcement of Judgments Act to operate in the overwhelming majority of cases. It would appear that the intent of the legislature was that the judgments of reciprocating jurisdictions should be registered in Ontario if the prerequisites of the Act, including s. 3 are satisfied. Other foreign judgments may be registered in Ontario only by an action to enforce the foreign judgment.
[69] However, in the case at bar, the "original judgment" is what the Antiguan Government calls a "ricochet judgment" because it is derivative of a judgment of a non-reciprocating jurisdiction, and this is an anomaly that the legislature may not have envisioned.
[70] The problem with including a ricochet judgment within the meaning of an "original judgment" is that, practically speaking, it allows a judgment of a non-reciprocating jurisdiction to be registered in Ontario, which circumvents the general policy of the Ontario law about foreign judgments that would normally apply when a part seeks to enforce a foreign judgment in Ontario from a non-reciprocating jurisdiction. [page532]
[71] This problem was noted by British Columbia Court of Appeal in Owen v. Rocketinfo, Inc.,[^22] where Justice Tysoe stated, at para. 21 of his judgment for the court:
To allow the appellant's judgment to be registered in British Columbia would have the effect of permitting the registration of a judgment granted by a court of a non-reciprocating jurisdiction, contrary to the intent of section 29(1) and 37(1). In my view, the Legislature did not intend to provide for registration in British Columbia of a judgment granted by a court of another jurisdiction by an indirect method when it is not permitted to be done directly. Otherwise, when the Lieutenant Governor in Council declared a state to be a reciprocating state, it would have the effect of declaring all of the jurisdictions that are reciprocal to that jurisdiction to also be states reciprocal to British Columbia for the purpose of registering judgments. In the case of declaring California to be a reciprocating state, the Lieutenant Governor in Council would effectively be declaring all other states of the United States of America to be reciprocating states because California permits the entry of sister state judgments issued by a court of any of the states of the United States.
[72] The facts of Owen v. Rocketinfo, Inc. were that Mr. Owen entered into an agreement governed by the law of Nevada to be the chief operating officer of Rocketinfo. Mr. Owen's employment was terminated, and he sued and obtained a default judgment in Nevada, which is a jurisdiction that does not have a reciprocal enforcement arrangement with British Columbia. Next, Mr. Owen registered his Nevada judgment in California, which has a reciprocal enforcement arrangement with Nevada pursuant to the California Code of Civil Procedure. Then, Mr. Owen attempted to register the California judgment in British Columbia, under British Columbia's Court Order Enforcement Act.[^23]Unlike Nevada, California was a reciprocating jurisdiction with British Columbia under British Columbia's Court Order Enforcement Act, which is comparable to Ontario's Reciprocal Enforcement of Judgments Act.
[73] Justice Tysoe reasoned that although the California judgment was a judgment of a reciprocating jurisdiction it was not a "judgment" as defined under the Court Order Enforcement Act, which (like Ontario's Reciprocal Enforcement of Judgments Act) defines a judgment to mean an order whereby a sum of money is payable. At para. 13 of his Reasons for Decision he stated that it was the Nevada judgment that made money payable and the California judgment did not make money payable but, rather, made the Nevada judgment enforceable in California. Thus, the original [page533] judgment was from a non-reciprocating jurisdiction and could not be registered like a judgment from a reciprocating jurisdiction.
[74] In the immediate case, I would adopt and follow, the British Columbia Court of Appeal's judgment in Owen v. Rocketinfo, Inc.
[75] H.M.B. Holdings, however, relies on Solehdin v. Stern Estate,[^24] where the British Columbia Court of Appeal distinguished its decision in Owen v. Rocketinfo, Inc.
[76] The facts were of Solehdin v. Stern Estate were that Capital One National Association sued Nizar and Yasmeen Solehdin, the Estate of Benjamin Stern and Meyer Gindin in the Louisiana bankruptcy court. The Estate and Mr. Gindin brought cross-claims against the Solehdins. The Solehdins defended the proceedings in Louisiana, but they were unsuccessful in the main action and in the cross-claim brought by the estate and Mr. Gindin. The successful parties in Louisiana then brought common law actions in Ontario to enforce the three Louisiana judgments against the Solehdins. In Ontario, Justice Leach held that the Louisiana court had a real and substantial connection with the subject matter and granted judgment to enforce the foreign judgments.[^25] The decision was affirmed by the Court of Appeal,[^26] and the Supreme Court of Canada denied leave to appeal.[^27]
[77] The Stern estate and Mr. Gindin then registered the three Ontario judgments in British Columbia pursuant to the Enforcement of Canadian Judgments and Decrees Act[^28] (which, it should be kept in mind, is a statute distinct from British Columbia' Court Order Enforcement Act, which is the comparable statute to Ontario's Reciprocal Enforcement of Judgments Act). The Solehdins' then brought a motion in British Columbia to have the registrations lifted from the titles of their properties. In a decision affirmed by the British Columbia, Justice Leask dismissed the Sohedins' motion.
[78] In the British Columbia Court of Appeal, relying on Owen v. Rocketinfo, Inc., supra, the Solehdins submitted that the Stern Estate and Mr. Gindin were through a judgment from a reciprocating jurisdiction indirectly attempting to enforce in British Columbia a judgment from a non-reciprocating jurisdiction. The Solehdins submitted that Stern estate and Mr. Gindin could not [page534] do this indirectly and that to enforce the Louisiana judgment, they had to bring a common law action to enforce a foreign judgment and not rely on the Ontario judgment. In other words, the Solehdins were arguing, as had Rocketinfo Inc., that reciprocal enforcement legislation cannot be used to enforce a judgment derived from a non-reciprocating jurisdiction.
[79] Justice Stromberg-Stein delivered the judgment of the British Columbia Court of Appeal. She noted that there are three ways to enforce a foreign judgment in British Columbia, namely, one, by a common law action; two, by an application under the Court Order Enforcement Act ("COEA"); and three, by an application under the Canadian Judgments and Decrees Act. Without detracting from her court's decision in Owen v. Rocketinfo, Inc., Justice Stromberg-Stein distinguished the case, at paras. 20-21 of her decision, where she stated:
I agree with the BC Creditors that the Owen decision is legally and factually distinct from the present circumstances. In Owen, the Court concluded that California's entry of the Nevada judgment was not, itself, a "judgment" because it did not make money payable, as required by the definition under the COEA. The Court pointed to numerous sections of the COEA supporting its conclusion, many of which related to the fact that the California judgment was entered without certain procedural steps or the opportunity to present a defence: Owen at paras. 13-20.
Owen is therefore distinguishable in a number of ways. Owen was a situation that amounted to a bypassing and undermining of the reciprocal-enforcement provisions of the COEA. Allowing registration in British Columbia would have undermined the COEA by permitting the judgment creditors to avoid the more rigorous common law test for recognition and enforcement of a foreign judgment. Owen also involved a fundamentally different type of judgment -- one where the registration of the original foreign judgment occurred merely through the filing of a sworn statement containing information about the sister-state judgment, without the opportunity to be heard by those opposing registration. Finally, the decision of this Court in Owen regarding whether the California judgment was a "judgment" within the meaning of the COEA was based on the in-terpretation of specific provisions in the COEA, which is an entirely different legislative scheme from the Act. It is important to maintain the distinction between the Act and the COEA. They are different statutes created for different reasons and the language in each is different. The Ontario judgments, which are qualitatively different than the California judgment in Owen, fall squarely within the definition of "Canadian judgment" under the Act.
[80] About the nature of a "Canadian judgment," under the Canadian Judgments and Decrees Act, Justice Stromberg-Stein added, at paras. 26-28:
Considering the structure of the Act, and evidence of its purpose and legislative intent, the Ontario judgments are clearly "Canadian judgments" within the meaning of the Act. Permitting registration in British Columbia is consistent with the principles outlined in Morguard, namely, to reduce the impediment that occurred under the previous system of registering and enforcing [page535] interprovincial judgments. It would be contrary to the purpose of the Act and the principles in Morguard to require the BC Creditors to re-litigate the issue in British Columbia, as this would create the risk both of inconsistent verdicts and impediment to economic development, which the Act was intended to address.
The action in the Ontario Superior Court was to have the Louisiana judgments recognized and enforced through the Ontario court's common law authority. It was not a "mere" recognition of the Louisiana judgments, as the Solehdins suggest. Rather, both parties were given an opportunity to be heard, to call expert evidence, and to make full submissions. Following a detailed analysis of the applicability of the common law "real and substantial connection" test, the Ontario Superior Court ordered that each of the Solehdins pay to the BC Creditors Canadian currency equal to $62,500 US, as well as costs. Further, the Ontario Court of Appeal ordered the Solehdins to pay costs to the BC Creditors. Thus, in addition to being substantive legal proceedings in the typical sense, the Ontario judgments involved orders requiring "a person to pay money". The Ontario judgments clearly satisfy the ordinary meaning of the language in s. 1 of the Act defining "Canadian judgment".
The registration of the Ontario judgments in no way offends the purpose of the Act to give full faith and credit to the judgments of sister provinces. What has been granted here, under the Act, is full faith and credit to the Ontario Court's recognition and enforcement of the Louisiana judgment. The re-litigation of such a matter is precisely what the Act was created to avoid.
[81] For present purposes, it should be noted that the issue in the Solehdin v. Stern Estate case was not the interpretation of the words "original judgment" in a kindred statute to Ontario Reciprocal Enforcement of Judgments Act. The issue in Solehdin v. Stern Estate was the interpretation of a different statute and the meaning of "Canadian judgment" in that statute. The Solehdin v. Stern Estate decision is distinguishable from the immediate case and the Solehdin v. Stern Estate judgment is not helpful to H.M.B. Holdings.
[82] It may also be observed that in Solehdin v. Stern Estate, the registration in British Columbia of the judgment from Ontario that was derived from a Louisiana judgment followed a common law action for the enforcement of a foreign judgment. In the immediate case, the registration that is sought in Ontario of the judgment from British Columbia that was derived from the Privy Council's judgment has never been tested by a common law action to enforce a foreign judgment.
[83] In Solehdin v. Stern Estate, in seeking to uphold the Ontario judgment being registered in British Columbia, the Stern estate and Mr. Gindin had relied on the Manitoba case of Girsberger v. Kresz,[^29] which was a case mentioned in the Owen [page536] v. Rocketinfo, Inc. The Girsberger v. Kresz case is indeed an example of a judgment of a reciprocating jurisdiction that is derived from a judgment from a non-reciprocating jurisdiction being registered, but as I shall next explain Girsberger v. Kresz is an odd case and the interpretative issue of what counts for an original judgment was not explored in Justice Jewers' decision and, in any event, the case is not binding on me and I would not follow it on this point.
[84] The facts of Girsberger v. Kresz were that after a jury trial in Illinois, Mr. Girsberger obtained a judgment against Mr. Kresz for US$778,056. In 1991, Mr. Girsberger brought an action in Manitoba to enforce the foreign judgment. After an unsuccessful summary judgment motion in Manitoba, the case went dormant. Meanwhile in 1997, Mr. Girsberger brought a common law action in Ontario to enforce the Illinois decision. The Ontario action to enforce the foreign judgment was successful, and in 1998, pursuant to Manitoba's The Reciprocal Enforcement of Judgments Act,[^30] Mr. Girsberger moved without notice to Mr. Kresz to register the Ontario judgment. On the motion without notice, Justice Jewers registered the Ontario judgment, and then he refused to vacate the order when Mr. Kresz moved to have the order set aside on the grounds that he was not resident of or carrying on business in Ontario.
[85] Justice Jewers, without any statutory interpretation argument on the point stated that the "original court" for the purposes of Manitoba's Reciprocal Enforcement of Judgments Act would not be the Illinois court, which was not from a reciprocating state, but Ontario. He said that it was the Ontario judgment and not the Illinois judgment which was sought to be registered. Justice Jewers concluded Mr. Kresz had carried on business in Ontario and that the preconditions of Manitoba's Reciprocal Enforcement of Judgments Act had been satisfied. He also noted that there had been attornment and a decision on the merits of the common law enforcement action in Ontario.
[86] Justice Jewers noted the anomaly that Mr. Kresz was still a defendant entitled to defend in Manitoba but now had a final and conclusive judgment against him on the same matter, as a result of the registration in Manitoba of the Ontario judgment. Justice Jewers stated, in para. 34, that that Mr. Kresz might have avoided this dilemma by not attorning to the jurisdiction of the Ontario court and by refraining from carrying on business in Ontario or by making a better showing that he was not doing so.
[87] With respect to the influence of the Girsberger v. Kresz decision on the immediate case, if I were to agree that the Ontario court's decision, which was a derivative of the Illinois judgment, was the "original judgment", I would have no quarrel with Justice Jewers conclusion that the Ontario judgment would be registerable in Manitoba under its reciprocal enforcement of judgments statute because Ontario is a reciprocating jurisdiction. However, I do not agree, and in my opinion a derivative or ricochet judgment cannot be an "original judgment" for the purposes of the Reciprocal of Enforcement Act. Such a restricted interpretation of what is an "original judgment" is consistent with the purposes of the statute which is to require judgments for the payment of money from a non-reciprocating jurisdiction to be outside the ambit of the Act and enforceable only by a common law action to enforce a foreign judgment. [page537]
[88] In my opinion, Girsberger v. Kresz should have been decided differently and it would have been had the interpretative point actually been argued. In any event, the decision is not binding on me, and in my opinion, the Ontario statute should be interpreted as the comparable British Columbia statute was interpreted in Owen v. Rocketinfo, Inc.
[89] In the immediate case, I conclude that the original judgment is the judgment of the Privy Council and that the Antiguan Government may rely on s. 3(g) of the Reciprocal Enforcement of Judgments Act to resist registration of the British Columbia judgment.
H. Conclusion
[90] For the above reasons, the Antiguan Government's motion to strike is granted with costs of $2,500, all inclusive and H.M.B. Holding's application under the the Reciprocal Enforcement of Judgments Act is dismissed with costs of $30,000, all inclusive.
Application dismissed.
Notes
[^1]: R.S.O. 1990, c. R.5.
[^2]: S.B.C. 2012, c. 13, s. 7(b).
[^3]: S.O. 2002, c. 24, Sch. B, s. 4.
[^4]: George v. Harris, [2000] O.J. No. 1762, 2000 CarswellOnt 1714 (S.C.J.); Holder v. Wray, [2018] O.J. No. 5724, 2018 ONSC 6133 (S.C.J.).
[^5]: Limitations Act, S.B.C. 2012, c. 13, s. 7.
[^6]: R.S.C. 1985, c. S-18.
[^7]: Independence Plaza 1 Associates, L.L.C. v. Figlioni (2017), 136 O.R. (3d) 202, [2017] O.J. No. 243, 2017 ONCA 44, at para. 66.
[^8]: Acme Video Inc. v. Hedges (1993), 1993 CanLII 8553 (ON CA), 12 O.R. (3d) 160, [1993] O.J. No. 585 (C.A.), revg (1992), 1992 CanLII 7653 (ON SC), 10 O.R. (3d) 503, [1992] O.J. No. 1382 (Gen. Div.); Hull v. Wilson, [1995] A.J. No. 896, 1995 ABCA 374; T.D.I. Hospitality Management Consultants Inc. v. Browne, 1994 CanLII 10958 (MB CA), [1994] M.J. No. 448, [1994] 9 W.W.R. 153 (C.A.).
[^9]: Yaiguaje v. Chevron Corp., [2015] 3 S.C.R. 69, [2015] S.C.J. No. 42, 2015 SCC 42; Yip v. HSBC Holdings plc. (2018), 141 O.R. (3d) 641, [2018] O.J. No. 3681, 2018 ONCA 626, affg [2017] O.J. No. 4729, 2017 ONSC 5332 (S.C.J.).
[^10]: Yaiguaje v. Chevron Corp., supra; Yip v. HSBC Holdings plc., supra.
[^11]: [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, at para. 87.
[^12]: Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52; Beals v. Saldanha, [2003] 3 S.C.R. 416, [2003] S.C.J. No. 77, 2003 SCC 72; Yaiguaje v. Chevron Corp. (2018), 141 O.R. (3d) 1, [2018] O.J. No. 2698, 2018 ONCA 472.
[^13]: Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520, [2004] O.J. No. 1700 (C.A.); Commission de la Construction du Québec v. Access Rigging Services Inc. (2010), 104 O.R. (3d) 313, [2010] O.J. No. 5055, 2010 ONSC 5897 (S.C.J.).
[^14]: Beals v. Saldanha, supra; United States of America v. Yemec (2009), 2009 CanLII 44418 (ON SC), 97 O.R. (3d) 409, [2009] O.J. No. 3546 (S.C.J.), vard (2010), 2010 ONCA 414, 100 O.R. (3d) 321, [2010] O.J. No. 2411 (C.A.), reconsideration allowed [2010] O.J. No. 5349, 2010 ONCA 845.
[^15]: Yaiguaje v. Chevron Corp., supra (S.C.C.); Beals v. Saldanha, supra; King v. Drabinsky (2008), 2008 ONCA 566, 91 O.R. (3d) 616, [2008] O.J. No. 2961 (C.A.); Four Embarcadero Center Venture v. Kalen (1988), 1988 CanLII 4828 (ON SC), 65 O.R. (2d) 551, [1988] O.J. No. 411 (H.C.J.).
[^16]: R. v. Goldman, 1979 CanLII 60 (SCC), [1980] 1 S.C.R. 976, [1979] S.C.J. No. 136; R. v. Dubois, 1935 CanLII 1 (SCC), [1935] S.C.R. 378, [1935] S.C.J. No. 8, at p. 381 S.C.R.
[^17]: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] S.C.J. No. 2, [1998] 1 S.C.R. 27, at paras. 18-23.
[^18]: York (Regional Municipality) v. Winlow (2009), 2009 ONCA 643, 99 O.R. (3d) 337, [2009] O.J. No. 3691 (C.A.), at paras. 42-43; Bell ExpressVu Limited Partnership v. Rex, supra, at para. 30.
[^19]: Blue Mountain Resorts Ltd. v. Bok (2013), 114 O.R. (3d) 321, [2013] O.J. No. 520, 2013 ONCA 75; R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652, [1999] S.C.J. No. 18; Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, 1996 CanLII 149 (SCC), [1996] 3 S.C.R. 727, [1996] S.C.J. No. 111, at p. 781 S.C.R.
[^20]: R. v. McIntosh (1995), 1995 CanLII 124 (SCC), 21 O.R. (3d) 797, [1995] 1 S.C.R. 686, [1995] S.C.J. No. 16, at para. 20; Victoria (City) v. Bishop of Vancouver Island (1921), 1921 CanLII 568 (UK JCPC), 59 D.L.R. 399, [1921] 2 A.C. 384 (J.C.P.C.), at p. 387.
[^21]: Blue Mountain Resorts Ltd. v. Bok, supra, t para. 43.
[^22]: [2008] B.C.J. No. 2374, 2008 BCCA 502.
[^23]: R.S.B.C. 1996, c. 78.
[^24]: [2014] B.C.J. No. 3027, 2014 BCCA 482.
[^25]: Stern Estate v. Solehdin, [2010] O.J. No. 863, 2010 ONSC 1012 (S.C.J.).
[^26]: [2011] O.J. No. 1696, 2011 ONCA 286.
[^27]: [2011] S.C.C.A. No. 245.
[^28]: S.B.C. 2003, c. 29.
[^29]: 1998 CanLII 27834 (MB QB), [1999] M.J. No. 43, [1999] 7 W.W.R. 761 (Q.B.).
[^30]: C.C.S.M., c. J20.