Thanks, and likewise when you’re in Boston.

Let me know next time you’re in Toronto so we can meet for lunch. Best, A.

I will waive in your general direction as I drive past Toronto this weekend–I’ll be on my way from Boston to Newmarket.

With respect to the distinction I make between recognition and enforcement in relation to the impeachment defences set forth in Beals v. Saldanha, it is noteworthy that the genesis of these common law defences is the decision of Henry, J. of the Ontario Superior Court of Justice in Four Embarcadero Center Venture v. Kalen (1988), 65 O.R. (2d) 551 (Ont. Gen. Div.) which was an action to enforce a California money judgment in Ontario.

The peculiar aspect of the Contacare decision is that the defendant, CIBA, did not appear to have counterclaimed for the declaratory relief of recognition of the foreign judgment. Rather, CIBA seems to have defended the action relying on the Ontario Rules of Civil Procedure; namely, R.21.01(1)(b), as disclosing no reasonable cause of action, being, res judicata; or, alternatively, to dismiss or permanently stay the action as an abuse of process pursuant to R. 21.01(3)(d); or, in the further alternative, to dismiss or permanently stay the action on the ground that the Ontario court lacked jurisdiction simpliciter (personal and subject-matter jurisdiction). In the latter case, lack of jurisdiction simpliciter is non-sensical, since CIBA moved for recognition of the New York State judgment which required the Ontario court to assert subject-matter jurisdiction over the parties, with the issue of personal jurisdiction rendered moot by virtue of Contacare suing in Ontario and CIBA defending the action on the merits.

I agree that the defence of lack of natural justice (or its American corollary, lack of due process) always factors into the equation when dealing with conflict of laws analysis. The problem, as you can readily surmise, is that these are “defences” (or “defenses”).

It is also arguable that the other impeachment defences of fraud and public policy have no relevance in the recognition context, insofar as the plaintiff’s choice to sue in the foreign jurisdiction presupposes that the plaintiff knew what to expect in the foreign jurisdiction and is stuck with the adverse judgment.

Under Canadian common law for foreign judgment enforcement proceedings, two types of fraud are distinguished: fraud going to jurisdiction (or jurisdictional fraud) and fraud going to the merits (or merit-based fraud).

Justice Major, writing for the majority of the Supreme Court of Canada in Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416 (S.C.C.) previously eschewed the traditional distinctions between “intrinsic” and “extrinsic” fraud, suggesting that:

“It is simpler to say that fraud going to jurisdiction can always be raised before a domestic court to challenge the judgment. On the other hand, the merits of a foreign judgment can be challenged for fraud only where the allegations are new and not the subject of prior adjudication. Where material facts not previously discoverable arise that potentially challenge the evidence that was before the foreign court, the domestic court can decline recognition of the judgment.” (at para. 51).

You will note that Justice Major uses the phrase “recognition of the judgment” in the above quote. In the end, the result in Contacare is correct, even at the expense of conceptual clarity.