This is an update on our blog, Recognition of Foreign Judgments – The Ontario Courts will not Recognize Enforcement Orders (a.k.a. “Ricochet Judgments”), regarding the Superior Court decision in H.M.B. Holdings Ltd. v. Attorney General of Antigua and Barbuda, 2021 ONSC 2307 (CanLII). That decision has been appealed up to the Supreme Court of Canada (“SCC”), which has now also rendered its decision. In dismissing the appeal, the SCC agreed with the application judge, and with the Court of Appeal, that Ontario’s Reciprocal Enforcement of Judgments Act (the “Act”) bars the plaintiff (appellant) from registering a default judgment that it obtained in British Columbia to enforce a judgment granted by the Judicial Committee of the Privy Council. The SCC advised that the Act only applies to (1) reciprocating jurisdictions, such as British Columbia, and (2) judgments or orders of a court in a civil proceeding where a sum of money … Read More
Obiter or Not? A Refresher from the Ontario Court of Appeal
The recent case of The Catalyst Capital Group Inc. v VimpelCom Ltd., 2019 ONCA 354 [Catalyst], serves as a reminder that a court’s finding will not be considered obiter simply because there was another sufficient basis for the court’s decision. The Rule of Precedent The rule of precedent requires that courts render decisions that are consistent with the previous decisions of higher courts [Canada (AG) v Bedford, 2012 ONCA 186]. There are several well-known rationales for the rule: it promotes consistency, certainty and practicability in the law, sound judicial administration, and it enhances the legitimacy and acceptability of the common law [David Polowin Real Estate Ltd. v Dominion of Canada General Insurance Co., 2005 ONCA 21093]. Ratio vs Obiter The traditional dichotomy of ratio decidendi (“ratio”) and obiter dicta (“obiter”) is important for the scope of the rule. Only the ratio is binding on a subsequent court. Ratio refers to … Read More
Arbitration Clauses Enforced as Non-Consumers Ejected from Telus Class Action by Supreme Court of Canada
In Telus Communications Inc. v Wellman, 2019 SCC 19, the Supreme Court of Canada has favoured arbitration clauses in staying the claims of non-consumers in a class action against TELUS. The Court’s decision reflects a continued commitment of courts to taking a hands-off approach in upholding valid arbitration agreements, while its citation of the Ontario Court of Appeal’s Uber decision indicates that other routes – such as unconscionability – may be pursued to challenge specific arbitration clauses. Facts A proposed class action was filed in Ontario alleging that TELUS had for a number of years rounded up calls to the next minute without telling customers. The class included both consumers and non-consumers (business customers). Each individually agreed to the same non-negotiable standard form contract. The contract included an arbitration clause requiring all disputes (other than collection of accounts by TELUS) to be mediated, and failing that, arbitrated. Ontario’s Consumer Protection … Read More
Supreme Court Considers an ISP’s Right to Costs in Norwich Orders for Copyright Infringement
Norwich Orders have become a common tool to detect wrongdoers hiding behind the elusive veil of the internet. Whether the matter is with respect to defamation, intellectual property infringement, or fraud, the equitable remedy of pre-action discovery to compel Internet Service Providers (“ISPs”) to disclose a wrongdoer’s identity can help claimants determine their causes of action before they commence litigation. A question that has been raised, however, is who bears the costs of the Norwich Order? Is it the claimant seeking the Norwich Order or the ISP subject to the equitable remedy? To complicate the matter further, how does this interact with an ISP’s obligations under the “notice and notice” regime pursuant to Canada’s Copyright Act? By way of background, ss. 41.25 and 41.26 of the Copyright Act govern the statutory “notice and notice” regime for alerting alleged copyright infringers in Canada. These sections under the Copyright Act state that … Read More