In a somewhat surprising development, Justice MacPherson, who wrote the Ontario Court of Appeals’s decision in Yaiguaje v. Chevron, has stayed that decision pending the outcome of Chevron’s application to the Supreme Court of Canada. The decision was surprising—to me, at least, though I welcome the view of Canadian lawyers—because of the tenuousness of Chevron’s claim of irreparable harm: Chevron pointed to the risk that if it won, it might be unable to recover the costs of the proceedings form the Lago Agrio plaintiffs. These costs are, of course, minuscule compared to what is at stake in the case, but Justice MacPherson felt it was enough to justify a stay.
Today’s paper of the day, by friend of Letters Blogatory Antonin Pribetić, of Himelfarb Proszanski and the The Trial Warrior blog, will be of interest to Letters Blogatory readers, and especially to those following the twists and turns of the Lago Agrio case. It’s titled Recognition and Enforcement of Foreign Judgments in Canada, and it’s based on a presentation Antonin is to give at the Ontario Bar Association Institute’s 2014 “Internationalizing Commercial Contracts” program. Here is the abstract:
This paper provides an overview of the governing conflict of laws principles for the recognition or enforcement of foreign judgments, including an analysis of the recent Court of Appeal for Ontario decision in Yaiguaje et al. v. Chevron Corporation et al. and its implications for the recognition and enforcement of foreign judgments, generally. The issue of state immunity as an obstacle to foreign judgment enforcement is also considered.
The paper is available at SSRN.
The case of the day is In re Application of Ontario Principals’ Council (E.D. Cal. 2013). This is another § 1782 case arising out of a Canadian defamation action that I covered late last year. As in the earlier case, the judge granted the application after conducting an Intel analysis but refused the applicant’s request for an order enjoining the target of the subpoena from notifying its customers of the subpoena’s existence.
The interesting aspect of the decision is the Court’s brief First Amendment discussion. In the context of deciding whether the application was consistent with public policy, the judge noted that the First Amendment does not shield defamatory speech. Fair enough. But it would have been nice to have a discussion of the relevant differences between US and Canadian defamation law, and a consideration of the implications, if any, of the SPEECH Act for the issue. The SPEECH Act doesn’t say so, but I suppose one could think that if a foreign defamation judgment would be unenforceable in the United States, then as a matter of public policy the United States should not provide judicial assistance in the prosecution of the action.