Date: 20041213
Docket: T-438-04
Citation: 2004 FC 1735
Ottawa, Ontario, the 13th day of December 13, 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
BARTHÉLÉMY ANGBA
Applicant
and
DENISE ROY MARIE
Respondent
REASONS FOR ORDER AND ORDER
[1] This case concerns an application to register a foreign judgment made by the Abidjan court of first instance in the Ivory Coast Republic on February 24, 2004. That judgment sentenced Denise Roy Marie to six months' imprisonment and ordered her to pay a fine of CFA 50,000 (about Cdn $120), and 5,000,000 CFA (about Cdn $12,000) damages to Mr. Angba (the applicant), who was the [TRANSLATION] "civil party".
RELEVANT FACTS
[2] The applicant alleged that Ms. Roy Marie forged documents from the Ivory Coast in order to introduce them as evidence in a proceeding in Canada between herself and the applicant. In fact, the only references to a proceeding between the parties in Canadian courts appears at page 2 of the [TRANSLATION] "direct correctional citation with denunciation at the Solicitor General's department" filed by the applicant as Exhibit P-4; Exhibit P-5 also contains references to an action to annul a marriage in the Quebec Superior Court and another unspecified proceeding before the Immigration and Refugee Board (IRB) from the same motion record filed on March 1, 2004. The [TRANSLATION] "litigious" documents referred to by the applicant were not filed in the Federal Court and the [TRANSLATION] "proceeding(s) between the applicant and Denise Roy . . . pending in Canadian courts" were not specified. However, it seems clear that there was no reference to a proceeding of a commercial nature: there was no information as to whether judgments were rendered in proceedings in Canada.
[3] The applicant accordingly appeared in the Ivory Coast as a civil party to a criminal proceeding against Ms. Roy Marie: this proceeding resulted from an information laid by the applicant himself. The criminal charge was apparently served on the respondent on November 22, 2002. She lives in Canada and did not appear for the trial in the Ivory Coast.
[4] The judgment rendered in absentia on February 24, 2004, expressly mentions:
[TRANSLATION]
Whereas it has been established that the accused had no knowledge of the summons, a decision must be rendered by default.
(Emphasis added.)
[5] The Abidjan court of first instance entered a judgment by default, sentencing Ms. Roy Marie to six months' imprisonment and ordering her to pay a fine of CFA 50,000 and CFA 5,000,000 damages to Mr. Angba.
[6] Mr. Angba is thus trying having this judgment recognized in Canada so he can claim the CFA 5,000,000 from Ms. Roy Marie.
ISSUE
[7] Should the judgment be recognized pursuant to the United Nations Foreign Arbitral Awards Convention Act (the Foreign Arbitral Awards Act)?
ANALYSIS
[8] The applicant relied on the Foreign Arbitral Awards Act as a basis for having the judgment recognized in Canada. This is one of four different grounds which may be used to have a foreign judgment recognized. This provision is to be found at Rule 326 of Federal Court Rules (1998) (the Rules):
| FOREIGN JUDGMENTS AND ARBITRAL AWARDS Definitions 326 326. The following definitions apply to rules 327 to 334. . . . . . |
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JUGEMENTS ÉTRANGERS ET SENTENCES ARBITRALES Définitions 326 326. Les définitions qui suivent s'appliquent aux règles 327 à 334. . . . . . |
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| "foreign judgment" « jugement étranger » "foreign judgment" means a judgment or arbitral award that may be registered in a court in Canada in accordance with (a) sections 687 to 695 of the Canada Shipping Act; (b) the Canada-United Kingdom Civil and Commercial Judgments Convention Act; (c) the United Nations Foreign Arbitral Awards Convention Act; or (d) articles 35 and 36 of the Commercial Arbitration Code, set out in the schedule to the Commercial Arbitration Act. (jugement étranger) |
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« jugement étranger » "foreign judgment" « jugement étranger » Jugement ou sentence arbitrale qui peut être enregistré auprès d'un tribunal du Canada conformément : a) aux articles 687 à 695 de la Loi sur la marine marchande du Canada; b) à la Loi sur la Convention Canada-Royaume-Uni relative aux jugements en matière civile et commerciale; c) à la Loi sur la Convention des Nations Unies concernant les sentences arbitrales étrangères; d) aux articles 35 et 36 du Code d'arbitrage commercial figurant à l'annexe de la Loi sur l'arbitrage commercial. (foreign judgment) |
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[9] The applicant based his application for registration on section 4 of the Foreign Arbitral Awards Act, which indicates that:
4. (1) The Convention applies only to differences arising out of commercial legal relationships, whether contractual or not. [Emphasis added.]
[10] In the instant case, it clearly is not a commercial but rather a criminal matter, as Ms. Roy Marie was convicted under section 284 of the Ivory Coast's Code Pénal:
[TRANSLATION]
Article 284
Every person who reproduces or fraudulently imitates, forges or alters permits, certificates, passbooks, cards, tickets, receipts, passports, passes, travel documents, registers or any other document issued by the government or required by regulations for the establishing of a right, identity or status, granting of authorization or reimbursement of costs shall be liable to imprisonment of six months to three years and a fine of 50,000 to 500,000 francs.
[11] It is quite clear that section 4 of the Foreign Arbitral Awards Act applies to commercial transactions, which by their very nature often have extra-territorial application and therefore must be recognized in various countries, without the case having to be argued all over again.
[12] In the case at bar there is no evidence of any commercial dispute between Mr. Angba and Ms. Roy Marie. The applicant submitted no documentation indicating the exact relationship between the two parties, and so, relying on what was before the Court, I assume it was simply a criminal trial which took place in the Ivory Coast, which is clearly commercial in nature.
REAL AND SUBSTANTIAL CONNECTION
[13] Additionally, the real and substantial connection test must be applied to foreign judgments. In Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, the Court concluded that by adopting the method which enables proceeding at a place which has a real and substantial connection with the action, a reasonable balance is struck between the parties' rights. This provides some protection against the danger of being sued in places which have little or no connection with the transaction or the parties.
[14] The real and substantial connection test has been accepted and relied on in Canadian courts on several occasions. For example, I would refer simply to Amchem Products Inc. v. British Columbia (Workers' Compensation Board), [1993] 1 S.C.R. 897, where Sopinka J. said, at paragraph 32:
The weight to be given to juridical advantage is very much a function of the parties' connection to the particular jurisdiction in question. If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by reason of a real and substantial connection of the case to the jurisdiction, that is ordinarily condemned as "forum shopping".
[15] Although Morguard, supra, applied the real and substantial connection test only to inter-provincial judgments, Beals v. Saldanha, [2003] 3 S.C.R. 416, broadened this principle to apply to judgments from jurisdictions outside Canada as well:
International comity and the prevalence of international cross-border transactions and movement call for a modernization of private international law. The principles set out in Morguard, supra, and further discussed in Hunt v. T & N plc, [1993] 4 S.C.R. 289, can and should be extended beyond the recognition of interprovincial judgments, even though their application may give rise to different considerations internationally. Subject to the legislatures adopting a different approach by statute, the "real and substantial connection" test should apply to the law with respect to the enforcement and recognition of foreign judgments.
[16] Mr. Angba alleged that Ms. Roy Marie forged Ivory Coast documents and used them in a legal proceeding in Canada. If that was actually the case, the damage suffered by Mr. Angba would have taken place in Canada, not the Ivory Coast. Although it may be that, applying the real and substantial connection test, the criminal proceeding was properly filed in the Ivory Coast, his participation as a civil party is not a basis for his misusing the Canadian courts by trying to have the foreign judgment recognized in the Federal Court. The lack of any real and substantial connection for his action for civil damages would itself be a justification for dismissing the application.
NATURAL JUSTICE
[17] In addition to the foregoing reasons, I could not recognize this foreign judgment as it appears there was an infringement of the principle of natural justice. It is established that an application to register a foreign judgment can be dismissed when there is a flagrant breach of this rule:
Canadian courts may also refuse to enforce or recognise a foreign judgment if the proceedings before the foreign court amounted to a denial of natural justice. (W. Horton and C. Platto, Enforcement of Foreign Judgments Worldwide, London: Graham Trotman, 1993, at page 108)
[18] The Supreme Court of Canada reviewed the Canadian law on foreign judgments in Morguard, supra, at paragraphs 14 and 16:
The law on the matter has remained remarkably constant for many years. It originated in England during the 19th century and, while it has been subjected to considerable refinement, its general structure has not substantially changed. The two cases most commonly relied on, Singh v. Rajah of Faridkote, [1894] A.C. 670 (P.C.), and Emanuel v. Symon, supra [[1908] 1 K.B. 302 (C.A.), rev. [1907] 1 K.B. 235] date from the turn of the century. I shall confine myself to a discussion of the latter because it is the more frequently cited.
. . . . .
Buckley L.J.'s summary of the law in that case bears a remarkable resemblance to a Code and has been cited repeatedly ever since. He stated, at p. 309:
In actions in personam there are five cases in which the Courts of this country will enforce a foreign judgment: (1.) Where the defendant is a subject of the foreign country in which the judgment has been obtained; (2.) where he was resident in the foreign country when the action began; (3.) where the defendant in the character of plaintiff has selected the forum in which he is afterwards sued; (4.) where he has voluntarily appeared; and (5.) where he has contracted to submit himself to the forum in which the judgment was obtained.
[19] In Canadian and Quebec law the right to be a "civil party", which clearly derives from French law, does not exist. Of course, an individual has the right to file an information for forgery pursuant to the Criminal Code, but he or she cannot append a civil action to that proceeding. The said civil action must be brought pursuant to the provisions of the Quebec Civil Code, and the rules of evidence and application are clearly different. It is also possible that, in his judgment, the judge will order the person found guilty to do something or reimburse money appropriated, as in cases of fraud. However, in no event could such an order be treated in the same way as a commercial transaction.
[20] Ms. Roy Marie is not a citizen nor a resident of the Ivory Coast, has not brought any proceeding in the Ivory Coast, did not appear in the Ivory Coast court, and no contract exists with a clause designating the forum between the parties. Accordingly, a judgment from the Ivory Coast purporting to order Ms. Roy Marie to pay damages corresponds to none of the situations identified by the Supreme Court in Morguard, supra.
[21] It should further be noted that the Canadian precedents dealing with foreign judgments also apply to judgments from a Canadian province, which seek recognition in another province. In such cases, a breach of natural justice would be harder to prove. On the other hand, in the case at bar the applicant appeared as a civil party in the Ivory Coast. Although it may well be that Ms. Roy Marie visited the Ivory Coast, I find that this connection by itself does not suffice to compel her to return to a country which is in the middle of a civil war, to face charges of a criminal nature and a claim from a person who has become a "civil party" in the criminal proceeding.
CONCLUSION
[22] There are several deficiencies in Mr. Angba's application. First, contrary to what the applicant claimed, I find that the Foreign Arbitral Awards Act does not apply in the case at bar, as there was no commercial law relationship between the parties. Second, I do not find that there is any real and substantial connection between the CFA 5,000,000 damages which Ms. Roy Marie was ordered to pay and her actions regarding Mr. Angba in the Ivory Coast. Third, the rules of natural justice certainly do not allow the Court to recognize this judgment sentencing Ms. Roy Marie without her having a hearing in the Ivory Coast, a country undergoing civil war which has no real connection with her. What is more, this application for registration was made ex parte, without any explanations being given as to why Ms. Roy Marie was not informed of this action here in Canada, when she was informed of the action in the Ivory Coast: this I find puzzling, to say the least.
[23] It is to say the very least unusual to file a criminal information against someone in a foreign country located thousands of kilometres away without specifying the nature of the relationship and the dispute with that person, when both of the parties involved live in Canada. I think a Canadian court would be ill-advised to follow the logic put forward by the applicant in disregard of the rules laid down by statute and the case law.
[24] For all of these reasons, I feel that the application to register the foreign judgment must be dismissed.
O R D E R
THE COURT ORDERS that:
The application to register the foreign judgment be dismissed.
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"Pierre Blais" |
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J.F.C. |
Certified true translation
K. A. Harvey, BCL, LLB.
LEGISLATION
Federal Court Rules, 1998
| FOREIGN JUDGMENTS AND ARBITRAL AWARDS
Definitions
326. The following definitions apply to rules 327 to 334. |
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JUGEMENTS ÉTRANGERS ET SENTENCES ARBITRALES
Définitions
326. Les définitions qui suivent s'appliquent aux règles 327 à 334. |
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| "arbitration agreement" « convention d'arbitrage »
"arbitration agreement" means an agreement in writing as defined in article II of the convention set out in the schedule to the United Nations Foreign Arbitral Awards Convention Act or an arbitration agreement as defined in Article 7 of the Commercial Arbitration Code, set out in the schedule to the Commercial Arbitration Act. (convention d'arbitrage) |
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« convention d'arbitrage » "arbitration agreement"
« convention d'arbitrage » Convention écrite au sens de l'article II de la convention figurant à l'annexe de la Loi sur la Convention des Nations Unies concernant les sentences arbitrales étrangères ou convention d'arbitrage au sens de l'article 7 du Code d'arbitrage commercial figurant à l'annexe de la Loi sur l'arbitrage commercial. (arbitration agreement) |
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| "foreign judgment" « jugement étranger »
"foreign judgment" means a judgment or arbitral award that may be registered in a court in Canada in accordance with |
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« jugement étranger » "foreign judgment"
« jugement étranger » Jugement ou sentence arbitrale qui peut être enregistré auprès d'un tribunal du Canada conformément : |
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| (a) sections 687 to 695 of the Canada Shipping Act; |
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a) aux articles 687 à 695 de la Loi sur la marine marchande du Canada; |
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| (b) the Canada-United Kingdom Civil and Commercial Judgments Convention Act; |
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b) à la Loi sur la Convention Canada--Royaume-Uni relative aux jugements en matière civile et commerciale; |
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| (c) the United Nations Foreign Arbitral Awards Convention Act; or |
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c) à la Loi sur la Convention des Nations Unies concernant les sentences arbitrales étrangères; |
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| (d) articles 35 and 36 of the Commercial Arbitration Code, set out in the schedule to the Commercial Arbitration Act. (jugement étranger) |
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d) aux articles 35 et 36 du Code d'arbitrage commercial figurant à l'annexe de la Loi sur l'arbitrage commercial. (foreign judgment) |
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| Form of application
327. An application for registration, recognition or enforcement of a foreign judgment shall be in Form 327. |
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Forme de la demande
327. La demande pour l'enregistrement, la reconnaissance ou l'exécution d'un jugement étranger est rédigée selon la formule 327. |
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| Ex parte application
328. (1) An application under rule 327 may be brought ex parte. |
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Demande ex parte
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| 328. (1) La demande visée à la règle 327 peut être présentée ex parte.Directions regarding service
(2) On an ex parte application under subsection (1), the Court may direct that notice of the application be served on the foreign judgment debtor and may give such directions respecting the manner of service as it considers just. |
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Directives de la Cour
(2) Lorsque la demande visée à la règle 327 est présentée ex parte, la Cour peut donner l'ordre de signifier l'avis de demande au débiteur judiciaire et peut donner les directives qu'elle juge équitables quant au mode de signification. |
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| Affidavit
329. (1) An affidavit filed in an application under rule 327 shall be accompanied by an exemplified or certified copy of the foreign judgment and a copy of any arbitration agreement pursuant to which the judgment was awarded and state |
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Affidavit
329. (1) L'affidavit déposé à l'appui de la demande visée à la règle 327 est accompagné d'une copie certifiée conforme ou authentifiée du jugement étranger et d'une copie de la convention d'arbitrage. L'affidavit contient les renseignements suivants : |
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| (a) that the foreign judgment was not fully satisfied as at the filing of the application; |
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a) la mention qu'au moment du dépôt de la demande les obligations découlant du jugement étranger n'avaient pas toutes été remplies; |
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| (b) whether the foreign judgment debtor appeared in the original proceeding; |
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b) le fait que le débiteur judiciaire a comparu ou non dans l'instance initiale; |
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c) une adresse au Canada pour la signification au créancier judiciaire; |
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| (d) the name and usual or last known address of the foreign judgment debtor; |
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d) le nom et l'adresse habituelle ou la dernière adresse connue du débiteur judiciaire; |
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| (e) whether interest has accrued on the amount payable under the foreign judgment in accordance with the law of the state of the originating court or arbitral tribunal and, if interest has accrued, the rate of interest, the day from which it is payable, the amount due at the time of the filing of the application and, where applicable, the day on which interest ceases to accrue; |
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e) le fait que des intérêts ont couru ou non sur le montant à payer aux termes du jugement étranger selon la loi de l'État du tribunal d'origine ou du tribunal arbitral et, dans l'affirmative, le taux d'intérêt, le jour à compter duquel les intérêts sont devenus exigibles, le montant dû au moment du dépôt de la demande et, s'il y a lieu, le jour où ils cessent de courir; |
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| (f) the rate of exchange into Canadian currency prevailing on the day on which the foreign judgment was rendered, as ascertained from a chartered bank in Canada; |
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f) le taux de change en monnaie canadienne qui était applicable, d'après une banque à charte canadienne, le jour où le jugement étranger a été rendu; |
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| (g) that, having made careful and full inquiries, the applicant knows of no impediment to registration, recognition or enforcement of the foreign judgment; and |
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g) la mention que le demandeur, après avoir effectué des recherches complètes et minutieuses, ne connaît aucun empêchement à l'enregistrement, la reconnaissance ou l'exécution du jugement étranger; |
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| (h) that the foreign judgment is executory, that no appeal or other form of judicial review is pending and that any time prescribed for the making of an appeal or application for judicial review has expired. |
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| h) la mention que le jugement étranger est exécutoire et ne fait l'objet d'aucun appel ou autre forme de contrôle judiciaire et que le délai prescrit, s'il y a lieu, pour présenter un appel ou une demande de contrôle judiciaire est expiré.Affidavit of service
(2) Where a foreign judgment debtor did not appear in the original proceeding, an affidavit referred to in subsection (1) shall be accompanied by an affidavit of service on the foreign judgment debtor of the document instituting the original proceedings. |
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Exigence supplémentaire
(2) Dans les cas où le débiteur judiciaire n'a pas comparu dans l'instance initiale, l'affidavit visé au paragraphe (1) est accompagné d'un affidavit attestant que l'acte introductif de cette instance lui a été signifié. |
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-438-04
STYLE OF CAUSE:
BARTHÉLÉMY ANGBA
Applicant
and
DENISE ROY MARIE
Respondent
MOTION IN WRITING
REASONS FOR ORDER AND ORDER BY: The Honourable Mr. Justice Blais
DATED: December 13, 2004
SOLICITORS OF RECORD:
(No counsel) representing himself FOR THE APPLICANT
(No counsel) representing herself FOR THE RESPONDENT