Friday, 29 July 2016

Limitation Periods for the Enforcement of Foreign Judgments

             Recent news stories tell of some Americans who had sued Iran in the U.S. for harm arising from Iranian-sponsored terrorism, and who were able to enforce their judgments against a house in Toronto and building in Ottawa.  The American judgments are all six more years old, but the Americans did not start proceedings to enforce them until 2013 or 2014.  Subject to a few exceptions, the limitation period in Ontario is two years.    How were they able to get around that?  
            There is no limitation period for enforcing a domestic judgment, but there is uncertainty as to whether that applies to foreign judgments too.    I would have welcomed a ruling on this issue, which I explain a bit more below.  Unfortunately the Court that enforced those American judgments – the Superior Court of Justice in Tracy v. Iranian Ministry of Information and Security  [2016] O.J. No. 3042 -- did not delve into that. 
            The enforcement proceedings were not statute-barred because they were commenced under two years from when Canada enacted the Justice for Victims of Terrorism Act (“JVTA”) and amended the State Immunity Act (“SIA”), both done in 2012.      Before then, the Islamic Republic of Iran (“Iran”) was immune from suit.  The amendment to the SIA meant that countries on a certain list of countries believed to be supporters of terrorism are not immune from suit for support of terrorism occurring on or after Jan. 1, 1985.   Iran is on that list.   
The JVTA gives victims of terrorism a cause of action against foreign states that support terrorism, for loss or damage suffered on or after Jan. 1, 1985,  caused by acts or omissions which if committed in Canada would be punishable under Part II.1 (Terrorism) of the Criminal Code.  The JVTA also provides that Canadian courts must recognize an otherwise enforceable foreign judgment granted in respect of such loss or damage, even against a foreign state, if that state is on the list of states believed to support terrorism. 
The Americans’ claims are statutory claims under the JVTA.  In Peixiero v. Huberman [1997] 3 S.C.R. 549at para 44, the Supreme Court of Canada held that there can be no cause of action until the plaintiff’s injury meets all the statutory criteria.  The Americans had no cause of action until the JVTA was enacted and Iran’s immunity was removed.  They brought their proceedings to enforce the American judgments a year later, in March 2013.
The Ontario Court of Appeal ruled in in Lax v Lax, (2004) 70O.R. (3d) 520 that the provision in the Limitations Act (the statute that precedes the Limitation Act, 2002) which exempts enforcement of judgments from the limitation period does not apply to foreign judgments.  The current legislation does not clarify the matter.   The Superior Court of Justice, in Commission de la Construction du Quebec v Access Rigging,  2010 ONSC 5897  interpreted the current statute find the limitation period does apply. 
However, more recent decisions have cast doubt on those rulings. The Superior Court in PT ATPK Resources TBK v, Diversified Energy and Resource 2013 ONSC 5913, held there was no reason to treat foreign judgments differently from domestic judgments.  The following year the Ontario Court of Appeal in SA Horeca Financial v Light  2014 ONCA 811, arguably in obiter, implicitly agreed with the PT ATPK ruling.

Tuesday, 3 May 2016

Court Decision Embraces Use of Video-conferencing for Overseas Witnesses at Trial

            In cases where testimony at trial is needed from witnesses who are far away, the courts’ traditional preference that witnesses should ordinarily testify in person, enshrined in Rule 1.08 (5) (a), can make trials needlessly expensive.   Fortunately, there are encouraging signs that the courts are now more willing to permit testimony via video conferencing for foreign witnesses.  The Ontario Superior Court of Justice, in Chandra v. C.B.C. etal 2015 ONSC 5385 found that “the use of video or similar technologies does not now represent a significant deviation from the general principle favouring oral evidence in court”.  (para. 20) 
            In Chandra, a defamation case, the C.B.C. sought permission for five witnesses to testify at a jury trial via video conferencing.  Four were in the United Kingdom and one was in the United States.  None could be compelled to testify in person.  Two would face hardship for health reasons if required to travel.  The witnesses’ testimony would not take long: between half a day and a day and a quarter for each witness.  Rule 1.08 specifies six criteria to guide the court’s discretion as to whether to allow testimony by video conference.  Two of those criteria (Rule 1.08 (5) (c) and (d))   pertain to the ability to make determinations about the credibility of the witnesses and the importance of observing their demeanour.  

The Court gave permission on conditions, including: a.) that the court be satisfied with the reason for the witness not testifying in person, b.) that the court be satisfied with the video conferencing arrangements, and c.) that the party whose witnesses will testify by video conference bear all the costs of the videoconferencing.    

In reasons given after the trial, Mew J. stated that the video conferencing was entirely satisfactory.  The picture and sound quality were excellent, and the flow of testimony was not markedly less spontaneous than if the witnesses had testified in person.  Regus ( and whygo ( provided the video conferencing.   Screens were already in place in the court room.

The Court observed that the giving of testimony through video conferencing does not impede its ability to observe the demeanour of the witness or make determinations about the credibility of the witness.  In fact, video conferences offer important advantages:  the Court has the benefit of a “full face on-view of the witness as opposed to the profile seen in court” (para. 23), and the testimony can be replayed at will.   “The witness can be closely observed and most if not all of the visual and verbal cues that could be seen if the individual was physically present can be observed on the screen.”  (para. 20).  Video conferencing has been used in criminal proceedings even where credibility is a key issue:  Paiva v Corpening 2012 ONCJ 88.

The parties worked out amongst themselves what documents should be sent to the witness in advance in a document bundle. Technology permits putting documents to the witness in a contemporaneous way.  The court allowed cross-examining counsel to exclude certain documents from the bundle for tactical reasons, i.e. if giving a certain document to the witness in advance “would lessen the chances of the witness giving a contemporaneous or unvarnished answer” about that document. 

Chandra tells us that going forward, concerns about the ability to determine credibility and the ability to observe demeanour are not sound reasons to refuse video conferencing.    For this reason, the weight to be given to the traditional preference for in-person testimony (the first criteria) is to be reduced.  I would say the same goes for the second criterion, importance of the foreign witnesses’ evidence.   In fact, the Court stated that in the case of non-party witnesses, if the reason for not testifying in person is reasonable, and unless video conferencing facilities are not available, the court “should be reluctant” to refuse video conferencing.  (Para 25)

Friday, 22 April 2016

Proposed reforms would help in obtaining documentary evidence from abroad

The law of Ontario does not properly provide for obtaining documentary or physical evidence from outside Ontario, or for the inspection of property abroad or for medical examinations abroad.  As in the case of compelling testimony from people outside the province, one must arrange for assistance from the courts of where that evidence is located.  To do that, one must move for an order for the issuance of a letter of request (also known as letters rogatory) to go to the foreign court.   However, the relevant rules in Ontario’s Rules of Civil Procedure speak mainly to obtaining testimony, not documentary or physical evidence, inspections or medical examinations. 

Here is a condensed version of the submissions I recently made to the Civil Rules Committee.  
Rule 34.07 (2) (a) provides for the issuing of a commission for the “taking of evidence”, but the commission itself (form 34C) says nothing about obtaining documentary evidence.  
Rule 34.07 (2) (b) addresses the need to examine witnesses outside Ontario, by way of a letter of request to the foreign court to compel such witness to attend for examination, but it is silent about physical evidence, medical examinations or inspection of property. As for production of documents, that is mentioned only in the court form for a letter of request (form 34D), not in the rule itself.  That form includes a request that a witness be compelled to produce specified documents at an examination.  However, this does not by itself clearly confer power on the Ontario court to seek assistance for the production of documents outside Ontario.   The wording in the form goes beyond the scope of the rule and thus the legality of the form is in question.
Even if Form 34D validly creates power to request production of documents, some problems remain.  The first is the form says that the nature and date of the document must be specified.   The litigant seeking the documents may not know what documents exist, or if he/she does know, he/she may not be able to specify dates and other particulars. The rule ought not prevent a more general request.    The second is that a party may prefer to separate their requests for documents and for an examination of a witness.  A party may want to review documents before an examination, in order to plan the examination, or for that matter to determine whether testimony from that witness is even necessary.  The Rules ought to allow litigants more latitude for their requests.  The foreign court may or may not grant all the assistance requested, but it is quite unlikely to grant assistance not set out in the Letter of Request.
Documents that are located outside Ontario and which are in the possession of a party are caught by Rule 30.02, which says that parties must disclose “every document relevant to any matter in issue” in their “possession, control or power”.   This obligation is not expressly limited to documents inside Ontario, and a party that resists disclosure and production risks sanctions such as an order striking out his/her defence (rule 60.12).  However, there is a need to be able to request assistance from a foreign court to obtain that document, for the same reason that there is a need to be able to request such assistance to obtain testimony from a party outside Ontario.  Moreover, Rule 30.02 does not extend to documents in the possession of non-parties, and Rule 30.10 (production from non-parties) says nothing about documents outside Ontario.
Rule 36.03 – examinations outside Ontario for taking evidence before trial is also silent about seeking assistance for anything other than compelling testimony.   
The Courts of Justice Act is silent on this matter.   Ontario’s Evidence Act  R.S.O. 1990, Ch. E-23, s. 60 and the Canada Evidence Act, R.S.C. 1985 C-5, s. 46 each confer power on courts to grant assistance requested by foreign courts, including the production of documents,  but not to make requests to foreign courts.
            My review of the case law turned up two instances where courts ordered the issuance of letters   of request to compel production of documents, but in neither case did the court address the issue of whether the court has power to request a foreign court’s assistance other than to compel testimony.  In LG&E Natural Canada v. Energistics Group [1997] O.J. No. 1662 Gans J.  issued an order requiring a non-party in Alberta to produce certain documents and attend for examination, and for the issuance of a letter of request “as is necessary to compel [the non-party] to attend and be examined”.  Gans J’s reasons state that “a question was raised at the outset as to the jurisdiction of the court to entertain a motion of this nature, which was, in any event, not objected to by counsel for [the non- party]”.   Thus the court did not delve into whether its powers extend to the production of documents.  
            In Mendlowitz & Assoc. v. Korea Data Systems [2009] O.J. No. 3857, Marrocco J. issued an order for the issuance of a letter of request to the courts of Hong Kong for assistance in the preservation, production and authentication of documents.  The reasons do not indicate that the court’s power to do was challenged at all. 
            Courts in many foreign countries would entertain a request for assistance in compelling inspection and/or production of documents and physical evidence.  However, a Letter of Request from an Ontario court is required.   Courts in the United Kingdom can, under the Evidence (Proceedings in Other Jurisdictions) Act, 1975, assist with the production of documents, inspection and preservation of property, and medical examinations, if there is a Letter of Request from a foreign court.  Courts in countries that have ratified the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters   respond to a fairly wide range of requests, including for the inspection of documents or other property, real or personal, or for other judicial assistance, which might include medical examinations of persons abroad (see Articles 1 and 3), again provided that those courts receive a Letter of Request.   The United States is one jurisdiction where an Ontario litigant can potentially obtain judicial assistance without a Letter of Request. 
It is unfortunate and ironic that while Ontario courts tend to be fairly receptive to requests from foreign courts, Ontario litigants cannot obtain the same assistance themselves, from many countries, due to the state of our Rules.  This problem would persist even if Canada became a signatory to the Hague Convention.

The Committee is considering the matter.  Comments, anyone?