Law Times

PAGE 12 FOCUS augusT 9, 2010 • Law Times Cross-border litigation gets complex Ontario courts catching up as commerce becomes more internationally focused BY DARYL-LYNN CARLSON For Law Times open businesses in foreign ju- risdictions, there are a number of legal issues lawyers must deal with to determine which court will have the authority to preside over litigation matters that arise. In Toronto, the law fi rm of A Charles B. Wagner & Associates is tackling those issues through a complement of litigation law- yers able to deal with them. "As the world has grown smaller, the courts have caught up with com- merce that is interprovincial and also international," says Charles Wagner, founder of the fi rm. He cites as examples the deci- sions in two respective cases in the United States. "If an American court renders a judgment for a s the world gets smaller due to technology that enables entrepreneurs to certain amount of money, I fi nd that generally, an Ontario court will enforce it unless there are problems that render the judg- ment unenforceable," he says. Nevertheless, there have been problems that allow Canadian defendants to essentially avoid the consequences rendered by foreign courts. While Ontario courts successfully asserted ju- risdiction in the matters of Van Breda v. Village Resorts Ltd. and Charron v. Bel Air Travel Group Ltd., Wagner also points to the case of Beals v. Saldanha, in which the Supreme Court of Canada af- fi rmed its authority to enforce a judgment rendered in the United States only if the defendant was in a position to respond. "A foreign plaintiff who expects to have a judgment in his or her fa- vour enforced by a Canadian court has a responsibility to ensure that the defendant is in a position to make an informed decision about how to respond," the court asserted in the Beals matter. "If the defendant can show that the plaintiff failed to dis- charge that responsibility, the court should refuse to enforce the judgment on the basis that the defendant was deprived of proper notice, a basic condition of natural justice." Th e court continued: "In this case, the Florida claimants should have notifi ed the appellants of the steps they could take after new versions of the amended complaint were fi led and, more importantly, of the consequences of not taking those steps. Because they failed to do so, the appellants were unaware of the danger that their defence would lapse." Gregory Sidlofsky, also of Charles B. Wagner & Associ- ates, notes that there's a line that determines whether the prov- ince's courts will recognize mat- ters litigated outside of Ontario. Th ere has also been an increase 'As the world has grown small- er, the courts have caught up with commerce that is interpro- vincial and also international,' says Charles Wagner. "Th ere has been some tinkering by the courts in terms of what constitutes a real and substantial connection for people with for- eign interests, but what the Beals matter did is confi rm that doing business in other jurisdictions is opening yourself up to lawsuits in foreign jurisdictions," he says. "Th ese cases have a large im- pact on Canadian businesses as well as individuals with assets and business interests outside of Canada because in general terms, if you get sued, you have to de- fend it because if you don't, with very few exceptions, they're going to be able to enforce [a court de- cision] against you in Canada." As a result, Sidlofsky says it's To advertise in an upcoming issue, contact our sales team: Karen Lorimer 905-713-4339 klorimer@clbmedia.ca Narrow 1/8 - 3X.indd 1 Kimberlee Pascoe 905-713-4342 kpascoe@clbmedia.ca 3/4/09 2:26:28 PM important for companies do- ing business internationally to ensure they consult with a law- yer with experience in foreign commercial law matters in the event they run into problems. in the number of class action law- suits seeking compensation for foreign plaintiff s. Th e trend is rais- ing concerns for lawyers in both the defence and plaintiff bars who recognize that the enforcement of a settlement approved by a Ca- nadian court won't necessarily be upheld in a foreign country. To date, there hasn't been a class ac- tion with a proposed internation- al plaintiff group that has gone to trial in Canada to examine all of the issues in detail. Christopher Naudie, a litiga- tion partner at Osler Hoskin & Harcourt LLP in Toronto, says defence counsel are concerned about the implications of such class actions. "We want to know that a class proceeding will in- volve a fi nal determination for all of the class members, and the question is, can or should a Ca- nadian court or an Ontario court exercise jurisdiction, particularly when there's a reasonable ground to believe that an Ontario judg- ment would not be granted pre- clusive eff ect in the jurisdiction in question?" says Naudie. He notes that in the case of Ramdath v. George Brown Col- lege, the majority of the plaintiff s were foreigners who attended the college but are suing because the program they studied didn't give them the professional quali- fi cations promised to get jobs in their respective countries. During the certifi cation hear- ing in that case, Naudie notes that experts who testifi ed about the le- gal systems in China and India as- serted that those countries would likely not enforce a decision ren- dered by an Ontario court. "Th e inclusion of foreign members in a class action in Canada raises con- cerns," says Naudie. He adds it would be helpful Cross-Border Litigation Interjurisdictional Practice and Procedure Guidance on all aspects of cross-border litigation for inter-provincial, international and multiple jurisdictions Brian Casey, International Lawyer, Baker & McKenzie LLP ORDER your copy today Hardbound • 424 pp. • 2009 • $115 P/C 0291010000 ISBN 978-0-88804-484-6 Cross-Border Litigation: Interjurisdictional Practice and Procedure offers practical guidance on all aspects of cross-border and inter-provincial litigation, covering everything from deciding where to commence litigation to enforcement of a judgment. It is an excellent handbook to help you understand the legal considerations involved and map out the right course of action, such as: • • • • • • where is the best place to sue how to determine which jurisdiction's laws apply obtaining evidence from other jurisdictions pleading and proving foreign law pre-judgment cross-border remedies enforcing foreign judgments at home and domestic judgments abroad if a lawsuit including an interna- tional class of plaintiff s achieved a trial level instead of reaching a settlement — as most matters do — so a judge can interpret the implications for defendants. Otherwise, defendants risk fac- ing similar lawsuits in foreign coun- tries where plaintiff s reside if courts elsewhere don't recognize a settle- ment approved in Canada. LT For a 30-day, no-risk evaluation call: 1.800.565.6967 LT0809 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com Kenneth C. MacDonald "… This will be a very useful and timely involved addition to in thejurisdictional library of inter- any disputes." litigator ... and more

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