Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where jurisdiction simpliciter is otherwise established, the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that form follow function. Procedural rules (the form) must be predicated on the intended purpose (order and fairness). Although USA v. Shield is also informative in respect of the public policy defence, the Ontario court's analysis of the defence of natural justice begs scrutiny for three reasons. First, the defence of natural justice is the fulcrum between the principles of order and fairness that forms the basis for foreign judgment enforcement. Second, the factual and evidentiary record and procedural history in USA v. Shield both demonstrate that the standards of American due process and Canadian procedural fairness differ in material respects vis-a-vis default and/or summary judgments. Finally, and perhaps most importantly, the rights of unrepresented (pro se) corporate defendants to notice and right of appearance in U.S. federal and state courts are markedly different from those in Canada generally, and in Ontario, specifically. The case comment includes a comparative analysis of the U.S. Federal Rules of Civil Procedure, local Utah State Rules and the Ontario Rules of Civil Procedure. It concludes that the defence of natural justice requires further refinement and proposes six additional factors for Canadian courts to apply when considering the defence of natural justice in the context of foreign default judgment enforcement.
Canadian International Lawyer, Vol. 7, No. 1, pp. 8-23, 2007
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