Thanks, Alex, and that’s fair enough. I wasn’t trying to say what Canadian law is, but only what the plaintiffs say it is. When I give my own view, it’s really a theoretical or doctrinal view that may or may not reflect the law. It doesn’t reflect the law generally in the US, as I’ve said.

I’m looking forward to our panel discussion in Washington!

First, the terms “extrinsic fraud” and “intrinsic fraud” have not been part of Canadian law for some time. I am surprised – to put it mildly – to see them in the plaintiff’s reply and summary judgment motion.

The Supreme Court’s 2003 decision in Beals v Saldanha was pretty clear on this point:

The historic description of and the distinction between intrinsic and extrinsic fraud are of no apparent value and, because of their ability to both complicate and confuse, should be discontinued. 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, emphasis added)

Reading the pleading generously, one could of course say that the concepts of jurisdictional fraud and fraud not previously discoverable are nonetheless part of Canadian law, irrespective of the terminology. But this is sloppy drafting.

Second, on the topic of drafting, in my view the reply also rather blatantly disregards the Ontario rules of pleading by pleading evidence, not to mention its verbosity. Those rules are too often honoured in the breach, but from time to time one does see courts striking pleadings for that reason. There was an instructive example earlier this year, coincidentally also involving the firm acting for the plaintiffs in this case, Lenczner Slaght.

It’s too early to assess the motion, as we have only a notice of motion. But so far, to me this seems like just a lot of sound and fury, so to speak.

Alex