Friday, 28 April 2017

SCC Grants Leave in Hague Child Abduction Convention Case

            The Supreme Court of Canada has granted leave to hear an appeal relating to the Hague Convention on the Civil Aspects of International Child Abduction.   
            The father of the children in question, a permanent resident of  Germany, obtained an order in Ontario under the Convention for the children to move to Germany, on the grounds that Germany, where they were  born and lived until 2013, is their “habitual residence”.   The children had gone to Canada on a temporary basis for educational reasons.   The father had sued in Germany first; an appeal court there determined that Germany lacked jurisdiction as the children were not German citizens and were resident in Canada at the time. He then sued in Ontario.
            The appeal is brought by the Children’s Lawyer from an order of the Ontario Court of Appeal for them to go to Germany, over the children’s objections. 
             Issues to be addressed include the meaning of “habitual residence” in the Convention, and whether it should be determined having regard only for the best interests of the child or also with regard to the intentions of the care givers.   As well, what weight ought to be given to the preferences of the children?  There are also Charter issues, i.e. whether interpretation the Convention should be in a manner consistent with child’s s. 7 Charter rights and right of child who is a Canadian citizen to remain in Canada under s. 6(1).

The appeal might not be heard because it has become moot.  The children in question returned to Canada after the leave application was filed, as the result of the mother obtaining an order for custody from a court in Germany.

Thursday, 30 March 2017

Two Year Limitation Period Applies to Enforcement of Foreign Judgments: OCA

The Ontario Court of Appeal has at last made clear that a two year limitation period applies to proceedings for recognition and enforcement of foreign judgments.   Strathy C.J.O., writing for a unanimous court in Independence Plaza 1 Associates v. Figliotini [2017] O.J. No. 243, also ruled that the period begin when an appeal from the foreign judgment is dismissed, or if there was no appeal, when the time for bringing an appeal expires. 

Before Figliotini, there was uncertainty about whether a limitation period applies, which I commented on in my July 29, 2016 post.   Section 16 (2) of the Limitations Act, 2002, S.O. 2002, c. 24 says that there is no limitation period for a “proceeding to enforce an order of a court, or any other order that may be enforced in the same way as an order of a court”.  But does that extend to foreign court orders?   The Court of Appeal had not previously ruled on this provision, but had ruled, in Lax v Lax (2004), 70 O.R. (3d) 520 that the corresponding provision in the predecessor statute (the Limitations Act, R.S.O. 1990, ch. L 15 s. 45) did not include  foreign judgments.    In 2010 in Commission de la Construction du Quebec v Access Rigging (2010) 104 O.R. (3d) 313 a trial court had ruled that s. 16(2) does not extend to foreign judgments.    However, more recently other judges cast doubt on this.  In PT ATPK Resources v. Diversified Energy 2013 ONSC 5913 Justice Newbould held there was no reason to exclude foreign judgments from the scope of s. 16(2), and that comity is a reason to include them.  In SA Horeca Financial v Light 2014 ONCA 811, a summary judgment motion judge also disagreed with Access RIgging, and on a motion to the Court of Appeal to lift a stay of enforcement of a judgment in that case, Justice Weiler J.A. mentioned that judge’s views without disagreeing with him.

In Figliotini,  the Court analyzed the issue in depth, and gave several reasons why s. 16 (2) does not apply to foreign judgments.  Here are the main ones:  One, at common law, a foreign judgment cannot be directly enforced here; the judgment creditor must first obtain a judgment for recognition and enforcement.   As such, a foreign judgment is not an order that “may be enforced in the same way as an order of a court”.  

Two, a reason to apply a limitation period to a foreign judgment but not to a domestic judgment is that to enforce the former, one must first obtain a judgment enforcing that foreign judgment, and in that proceeding the judgment debtor may raise defences such as fraud and denial of natural justice.    The reasons why enforcement of a domestic judgment is not subject to a limitation period is that no proceeding is needed to enforce it, and the underlying claim has already passed a limitations hurdle.  

Three, to exempt foreign judgments from the limitation period is inconsistent with the purposes of limitation periods, which are to ensure that people are not exposed to claims for an unreasonably long time, and to ensure that plaintiffs bring their claims before evidence is lost.  Problems with the preservation and reliability of evidence are especially pronounced for foreign judgment debtors. 

As for when the limitation period starts, the fact a foreign judgment is considered final (a requirement for enforcement) even before the time for an appeal has run out does not have any bearing on limitations.   The test under the Limitations Act, 2002 is not when the judgment (or order) is final, but when it is discovered.     One element of a claim being discovered  is when “a proceeding would be an appropriate means to seek to remedy [the loss]” (s. 5(1) (a) 4).  A proceeding to enforce a foreign judgment would not be appropriate, Strathy C.J.O wrote, until the appeal period has expired or all appeals have been exhausted.    The Court did not say whether judgments from which leave to appeal must be obtained would be treated any differently.

Monday, 27 February 2017

French Court can order changes to foreign websites

             Recently the European Court of Justice (“ECJ”) issued a ruling that apparently allows a French court to order content to be removed from websites in other European Union countries.   A dealer of Samsung products had complained that other Samsung dealers were selling products online in France, Spain, Italy and elsewhere, in violation of a contract.   The dealer sued Amazon in France, relying on a French law that imposes liability on parties that directly or indirectly assist dealers to sell outside of a selective distribution network, despite prohibitions, and seeking an order requiring Amazon to remove those dealers’ products from Amazon in each of those countries.   The trial court and appeal court dismissed the claim on grounds that they lacked jurisdiction over foreign websites not directed at the French public.     The French Court of Cassation (the country's highest court for civil matters) referred the issue to the ECJ. 
            Article 5(3) of the Brussels I Regulation provides that, in tort cases, a person residing in a European Union member state may be sued in another E.U. member state, “in the courts of the place where the harmful event occurred or may occur”.*   This provision had previously been interpreted to include also where damage occurred (provided that such jurisdiction has laws that protect the right that was allegedly infringed).  A plaintiff could sue in either the place where the harmful event occurred or where the damage occurred.  

The ECJ held it was irrelevant that the websites outside France are not directed toward the French public.  It was enough that what was happening in those countries (i.e. the sale of Samsung products on Amazon) did or could cause damage in France, and that is for the French court to determine.    

The result was that the ECJ held that Article 5(3) confers jurisdiction on the courts of member states whose laws protect prohibitions against sales outside of a selective distribution network, provided that the plaintiff suffered damage in that member state.  See Case C 618/15 Concurrence SARL v. Samsung Electronics France and Amazon Services Europe SARL.

This case will remind readers of this blog of Equustek Solutions v. Datalink Technologies Gateways et al 2015 BCCA 265 , in which  the B.C. Court of Appeal ruled that the B.C. courts have power to order Google to remove content from results of searches done anywhere in the world.    That case is under appeal to the S.C.C.  (See my posts of July 9, 2015, Feb. 18, 2016 and March 28, 2016).

The ECJ’s ruling that damage occurring in the forum is itself a basis for jurisdiction over a foreign defendant stands in contrast to the Supreme Court of Canada’s 2012 decision in Van Breda,  that damage occurring or sustained in the forum is not a sufficient connection to that forum to justify the assumption of jurisdiction. 

*This regulation has been repealed but the corresponding provision in the regulation replacing it, Reg.1215/2012 (the Brussels Ibis Regulation), has identical language.