[d@DCC] Recognition of Foreign Judgments

[Jason Young]

Since I opened this can of worms, I'll now attempt to clarify a few things I
meant to convey with the earlier post.

First, there two meanings of "jurisdiction" here: 1) jurisdiction as in a
territorial domain, i.e. Canada; and, 2) jurisdiction as in the authority to
do something in a particular area, not necessarily territorial, i.e. could
be subject-matter.

Recognition of foreign judgments, in the conflict of laws context, deals
with a local court recognizing a foreign court's assertion of jurisdiction
(authority) over a local individual with some connection to that
jurisdiction (territorial) and/or the enforcement of a foreign-made judgment
in the local jurisdiction (territorial). It has nothing to do with making
foreign-made judgments without a 'real and substantial' connection to Canada
more persuasive to a Canadian court.

In Beals v. Saldanha, the Saldanhas had bought chunk of land in Florida for
$4000 as retirement property. Some time later they were offered, by the
developer Beals, twice the amount they had paid for it. They sold the
property and Beals started to build on the lot. Beals then discovered an
error in the documents of sale which meant that he was building on the wrong
lot. He sued for fraud in Florida.

The Saldanhas consulted an Ontario lawyer who informed them that they could
ignore the suit. I don't recall why, but I presume it went something like
"He's in Florida, you're not. Ignore it." Largely because the Saldanhas were
counseled and chose not to defend themselves, Beals won his case and a jury
awarded him approximately $1 million in damages. Beals then brought his
judgment to Ontario to get it recognized and enforced by an Ontario court.
The trial court refused, citing public policy reasons (the award was far
higher than any Canadian court would have awarded), but the Ontario Court of
Appeal reversed and the Supreme Court affirmed on the grounds that Florida
was the most appropriate forum for Beals to bring his action (the land was
there) and the process was otherwise 'fair and reasonable'. The Saldanhas
would have been on the hook, but for the fact that they got into the mess in
part because of poor advice from their Ontario lawyer. Instead, LAWPRO, the
insurance company for the legal profession, has said they will cover the
damages.

Again, this case does *not* mean that foreign cases with no connection to
Canada will be any more persuasive to a Canadian court simply because they
are foreign. It does, however, have important implications for things we do
in cyberspace, including but not limited to commerce, because the technology
exposes you to potentially more jurisdictions than you might otherwise be
exposed to and Saldanha - and other cases in the line, i.e. Morguard, Hunt,
etc - stipulates that if those foreign courts observe 'fair and reasonable'
(correctness has nothing to do with fairness here, by the way) practices
then Canadian courts will be expected to recognize and enforce those
judgments.

Conflict of laws is a messy, muddy thing and there are plenty of caveats,
exceptions, discretion, etc. This is hardly the end of the story, but it is
an important case. I hope this explanation makes it a little more clear as
to why.

Jason

----- Original Message ----- 
From: "Richard Pitt" <richard at belcarra.com>
To: "General Discussion" <discuss at digital-copyright.ca>
Sent: Friday, December 19, 2003 12:06 PM
Subject: Re: [d at DCC] CRIA Threats to Sue Ill-Conceived


> A note from Slashdot (/.) points to a ruling in US Federal appeals court
> rejecting RIAA's subpoenas to Verizon to force them to turn over names
> of subscribers.
>
> The previous note on this list about our courts respecting foreign
> judgments may be a good thing.
>
> See: www.slashdot.org for comments, etc. and original article at:
> http://apnews.myway.com/article/20031219/D7VHHPHO0.html
>
> richard

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