Case of the Day: Barer v. Knight Brothers

The case of the day is Barer v. Knight Brothers LLC, 2019 SCC 13. Knight Brothers, a Utah company, sued David Barer, who resided in Quebec, and two companies, CBC and BEC, that Barer allegedly controlled. The claim was that BEC had breached a contract with Knight and that Barer was liable for fraudulent misrepresentation and on a veil-piercing claim. Knight brought the case in the Utah state courts. Barer moved to dismiss, arguing that the claim should be dismissed for failure to state a claim and that the Utah court lacked personal jurisdiction over him. The Utah court denied the motion, and Knight then obtained a default judgment. Knight sought recognition and enforcement in Quebec. The Superior Court granted the motion on the grounds that Knight had submitted to the jurisdiction of the Utah court, and the Quebec Court of Appeal affirmed. Barer then appealed to the Supreme Court of Canada.

In Quebec, foreign judgments are generally entitled to recognition and enforcement, with exceptions (Civil Code § 3155). Here the relevant exception covered cases where the foreign court “had no jurisdiction under the provisions of this Title.” (§ 3155(1)). Under § 3168(6) of the Civil Code, a Quebec court will find that the foreign court had jurisdiction if “the defendant has submitted to the jurisdiction of the foreign authorities.” This statutory scheme is similar to the scheme in the UFCMJRA: Section 4(b)(2) of the UFCMJRA denies recognition if “the foreign court did not have personal jurisdiction over the defendant,” and § 5(a)(2) provides that a foreign judgment “may not be refused recognition for lack of personal jurisdiction if … the defendant voluntarily appeared in the proceeding, other than for the purpose of protecting property seized or threatened with seizure in the proceeding or of contesting the jurisdiction of the court over the defendant.”

The Supreme Court held that Barer’s arguments addressed to the merits of the pleadings were fatal:

A defendant submits to jurisdiction when it presents substantive arguments which, if accepted, would resolve the dispute—or part of the dispute—on its merits. Parties who choose to advance substantive arguments to further their positions in a forum consent to the jurisdiction of that authority. The ‘save your skin’ approach to submission to jurisdiction, whereby a defendant who presents a defence on the merits at the same time as its jurisdictional arguments will not be taken to have submitted to jurisdiction, should be rejected.

There may be an exception in cases where the foreign defendant was required, by the law of the forum, to present his merits arguments at he same time as his jurisdictional arguments. But that is not true in federal practice—a motion for judgment on the pleadings can be brought “after the pleadings are closed—but early enough not to delay trial,” FRCP 12(c), and is apparently not true in Utah either. Thus the Supreme Court noted that Barer had “failed to establish that, as a result of Utah procedural law, he had to proceed as he did and present all of his preliminary exceptions together.” Note that US civil procedure does a good job of distinguishing defenses that must be raised at the first opportunity defenses that can be raised later: only lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process need be raised at the first opportunity under FRCP 12(h).

Parties in Barer’s situation face difficult strategic decisions at the outset of a case. If Barer’s plan was to raise jurisdictional arguments and then default if he was unsuccessful, he ought to have omitted his substantive arguments. Or perhaps he ought not to have appeared at all.

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