H.M.B. Holdings Ltd. v. Antigua and Barbuda

H.M.B. Holdings Ltd. v. Antigua and Barbuda
Collection
Supreme Court Judgments
Date
2021-11-04
Neutral citation
2021 SCC 44
Report
[2021] 3 SCR 285
Case number
39130
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Kasirer, Nicholas
On appeal from
Ontario
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: H.M.B. Holdings Ltd. v. Antigua and Barbuda, 2021 SCC 44, [2021] 3 S.C.R. 285
Appeal Heard: April 20, 2021 Judgment Rendered: November 4, 2021 Docket: 39130
Between: H.M.B. Holdings Limited Appellant
and
Attorney General of Antigua and Barbuda Respondent
Coram: Wagner C.J. and Karakatsanis, Côté, Rowe and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 51)
Wagner C.J. (Karakatsanis, Rowe and Kasirer JJ. concurring)
Concurring Reasons: (paras. 52 to 70)
Côté J.
H.M.B. Holdings Limited Appellant
v.
Attorney General of Antigua and Barbuda Respondent
Indexed as: H.M.B. Holdings Ltd. v. Antigua and Barbuda
2021 SCC 44
File No.: 39130.
2021: April 20; 2021: November 4.
Present: Wagner C.J. and Karakatsanis, Côté, Rowe and Kasirer JJ.
on appeal from the court of appeal for ontario
Private international law — Foreign judgments — Reciprocal enforcement — Registration — Carrying on business — Foreign judgment awarding compensation to judgment creditor for expropriation of lands by judgment debtor — Judgment creditor successfully obtaining default judgment in British Columbia to enforce foreign judgment — Judgment creditor then applying for registration of default judgment in reciprocating jurisdiction of Ontario — Application dismissed on basis that judgment debtor not carrying on business in British Columbia — Whether judgment creditor is precluded from having default judgment registered in Ontario — Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5, s. 3(b).
Antigua and Barbuda (“Antigua”), a country comprised of several islands in the Caribbean, expropriated property owned by H.M.B. Holdings Limited (“HMB”), a private company incorporated in Antigua. Litigation ensued at the Judicial Committee of the Privy Council, and Antigua was ordered to compensate HMB for the expropriation. Years later, HMB brought a common law action in British Columbia to enforce the foreign judgment in that province. Antigua did not defend the action, and as a result, HMB obtained a default judgment. HMB then commenced an application in Ontario to enforce the British Columbia judgment by having it registered under the Reciprocal Enforcement of Judgments Act (“REJA”). The application judge found that ss. 3(b) and 3(g) of the REJA — which prescribe, as conditions of registration, that the judgment debtor be carrying on business within the jurisdiction of the original court and that the judgment debtor have no good defence on the original judgment — barred registration. A majority of the Court of Appeal upheld the application judge’s conclusion on the basis of s. 3(b) alone.
Held: The appeal should be dismissed.
Per Wagner C.J. and Karakatsanis, Rowe and Kasirer JJ.: Section 3(b) of the REJA effectively bars HMB from registering the British Columbia judgment in Ontario. The term “carrying on business” set out in s. 3(b) was given a generous and liberal interpretation by the courts below consistent with the Court’s jurisprudence. There is no error of law in their interpretation of s. 3(b), nor is there any palpable and overriding error in the conclusion that Antigua was not carrying on business in British Columbia. In light of this finding, it is unnecessary to consider whether s. 3(g) also bars HMB from registering the British Columbia judgment under the REJA.
The REJA allows a person who has obtained a judgment in another jurisdiction (the “judgment creditor”) to apply to register the judgment in Ontario and creates a process by which the person against whom the judgment was obtained (the “judgment debtor”) can resist its registration. A judgment registered under the REJA is treated as if it were a judgment originally issued by an Ontario court. Though not the only route available to applicants, the REJA constitutes an easy, economical and expedient mechanism for enforcing foreign judgments. It provides a number of statutory benefits, such as registration without notice to the judgment debtor and a short window, following notice of registration, during which the judgment debtor can seek to set aside the registration. However, this process occurs at a cost: only judgments from reciprocating jurisdictions may be registered under the REJA. Moreover, recognition of judgments under the REJA is subject to seven defences, set out in s. 3. If any one defence is established, the judgment cannot be registered.
The section 3(b) defence to registration places two burdens on a judgment debtor. First, the judgment debtor must establish that they were not carrying on business or ordinarily resident in the jurisdiction of the original court. Second, the judgment debtor must also show that they did not voluntarily appear or otherwise submit to the original court’s jurisdiction during the proceedings the judgment creditor brought in that court. If the judgment debtor shows the Ontario court that these two conditions are met, then s. 3(b) bars the registration of the judgment.
The REJA does not define “carrying on business” for the purposes of s. 3(b), but this concept has a long history at common law. As a matter of statutory interpretation, common law terms and concepts are presumed to retain their common law meaning when used in legislation. At common law, the concept of “carrying on business” forms part of the law on the traditional bases of jurisdiction, which recognize and enforce a foreign judgment only if the defendant in the original action had been present in the foreign jurisdiction or had consented in some way to the foreign court’s jurisdiction. Section 3(b) codifies the traditional common law bases of jurisdiction as a prerequisite for registration. The Canadian common law of recognition and enforcement has however developed beyond the traditional bases of jurisdiction to recognize the judgment of a court in one province in another province on the basis of a “real and substantial connection” to the original jurisdiction. Nonetheless, the common law bases of presence and consent remain important, and are critical to understanding s. 3(b) of the REJA.
To determine whether a defendant is carrying on business in a jurisdiction, the court must inquire into whether it has some direct or indirect presence in the jurisdiction, accompanied by a degree of business activity that is sustained for a period of time. Whether or not a corporation is carrying on business is a question of fact assessed in reference to a number of indicia. Some kind of actual presence, whether direct or indirect, is required. A physical presence in the form of maintenance of physical premises will be compelling, but a virtual presence that falls short of an actual presence will not suffice. “Carrying on business” for the purpose of establishing traditional presence‑based jurisdiction is a stricter standard than “carrying on business” as a mere presumptive connecting factor for assumed jurisdiction. Despite these differences, the requirements for “carrying on business” under the standard of assumed jurisdiction must also apply for the purposes of traditional presence‑based jurisdiction. In both cases, some form of tangible presence in the jurisdiction is required, such as maintaining a physical office.
The REJA applies only to a judgment or an order of a court in any civil proceedings whereby any sum of money is payable. It remains an open question whether a derivative judgment — which in itself enforces a judgment of a non‑reciprocating jurisdiction — falls within the definition of “judgment” in s. 1(1) of the REJA and can therefore be registered under the statute.
Per Côté J.: There is agreement with the majority’s analysis under s. 3(b) of the REJA, and with its disposition of the appeal. However, to the extent that the majority’s reasons suggest the REJA might not apply to derivative judgments, there is divergence of opinion. A judgment resulting from a common law action that recognizes a foreign judgment, such as the British Columbia judgment in this case, falls squarely within the broad definition of “judgment” in s. 1(1) of the REJA, provided that the recognition judgment was rendered in a reciprocating jurisdiction.
Statutory interpretation entails discerning legislative intent by examining statutory text in its entire context and in its grammatical and ordinary sense, in harmony with the statute’s scheme and objects. The REJA contains a plain language provision that defines the judgments to which it applies. Under s. 1(1) of the REJA, “judgment” means a judgment or an order of a court in any civil proceedings whereby any sum of money is payable. Understood in its grammatical and ordinary sense, the definition undoubtedly encompasses recognition judgments such as the British Columbia judgment. Reading into s. 1(1) an exception applicable to derivative judgments is counter‑intuitive and supported neither by the text nor by the ordinary rules of statutory interpretation.
The REJA’s overarching purpose is to provide a convenient and inexpensive mechanism to register foreign judgments that saves creditors and courts time and resources. Such advantages promote access to justice and are particularly valuable to judgment creditors who are less familiar with Ontario’s legal environment. The main benefit of the REJA’s registration mechanism is that it reverses the litigation burden by permitting registration unless the debtor succeeds in an action to set it aside. Comity between reciprocating jurisdictions is crucial to attain this purpose. Relying on the legally non‑existent notion of derivative judgments would do little to keep the REJA’s mechanism accessible and convenient to judgment creditors.
This interpretation meets the standard of commercial certainty, and accords with the Court’s jurisprudence acknowledging that recognition judgments are capable of being registered in other provinces. But there is an important caveat. While the REJA permits the registration of recognition judgments, it forbids the registration of a judgment that has itself been registered, as the latter does not make money payable. Allowing registration of judgments that have themselves been registered would unduly expand the list of jurisdictions to which the REJA applies by including all of the jurisdictions that are reciprocal to those listed in accordance with the statute.
Cases Cited
By Wagner C.J.
Considered: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572; Chevron Corp. v. Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69; Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077; Adams v. Cape Industries Plc., [1990] 1 Ch. 433; referred to: Wilson v. Hull (1995), 128 D.L.R. (4th) 403; T.D.I. Hospitality Management Consultants Inc. v. Browne (1994), 117 D.L.R. (4th) 289; Impagination Inc. v. Baird (2001), 202 Nfld. & P.E.I.R. 300; Owen v. Rocketinfo Inc., 2008 BCCA 502, 86 B.C.L.R. (4th) 64; Strategic Technologies Pte Ltd. v. Procurement Bureau of the Republic of China Ministry of National Defence, [2020] EWCA Civ 1604, [2021] 2 W.L.R. 448; Vizcaya Partners Ltd. v. Picard, [2016] UKPC 5, [2016] 3 All E.R. 181.
By Côté J.
Applied: Chevron Corp. v. Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69; distinguished: Owen v. Rocketinfo Inc., 2008 BCCA 502, 86 B.C.L.R. (4th) 64; disapproved: Strategic Technologies Pte Ltd. v. Procurement Bureau of the Republic of China Ministry of National Defence, [2020] EWCA Civ 1604, [2021] 2 W.L.R. 448; referred to: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; C.M. Callow Inc. v. Zollinger, 2020 SCC 45, [2020] 3 S.C.R. 908; Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, [2021] 2 S.C.R. 291; MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899; Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763; Solehdin v. Stern Estate, 2014 BCCA 482, 364 B.C.A.C. 128; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612; Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077; Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416; Girsberger v. Kresz, [1999] 7 W.W.R. 761, aff’d [2000] 1 W.W.R. 101; Tracy (Litigation guardian of) v. Iranian Ministry of Information and Security, 2016 ONSC 3759, 400 D.L.R. (4th) 670, aff’d 2017 ONCA 549, 415 D.L.R. (4th) 314.
Statutes and Regulations Cited
Administration of Justice Act, 1920 (U.K.), 10 & 11 Geo. 5, c. 81, s. 9(2)(b).
Land Acquisition Act (Atg.), 1958, c. 233.
Limitation Act, S.B.C. 2012, c. 13, s. 7.
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 4.
Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5, ss. 1(1) “judgment”, “judgment creditor”, “judgment debtor”, “original court”, “registering court”, 2, 3, 4, 6, 7, 8.
Authors Cited
Conference of Commissioners on Uniformity of Legislation. Proceedings of the Seventh Annual Meeting of the Conference of Commissioners on Uniformity of Legislation in Canada, App. G, The Reciprocal Enforcement of Judgments Act. Ottawa, 1924.
Pitel, Stephen G. A., and Nicholas S. Rafferty. Conflict of Laws, 2nd ed. Toronto: Irwin Law, 2016.
Pitel, Stephen G. A., et al. Private International Law in Common Law Canada: Cases, Text and Materials, 4th ed. Toronto: Emond Montgomery, 2016.
Scalia, Antonin, and Bryan A. Garner. Reading Law: The Interpretation of Legal Texts. St. Paul: Thomson/West, 2012.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.
Walker, Janet. Castel & Walker: Canadian Conflict of Laws, 6th ed. Toronto: LexisNexis, 2005 (loose‑leaf updated August 2021, release 87).
Walker, Janet. Halsbury’s Laws of Canada — Conflict of Laws, 1st ed. Toronto: LexisNexis, 2020 Reissue.
APPEAL from a judgment of the Ontario Court of Appeal (Simmons, Pardu and Nordheimer JJ.A.), 2020 ONCA 12, 149 O.R. (3d) 440, 442 D.L.R. (4th) 241, 14 L.C.R. (2d) 177, 1 B.L.R. (6th) 232, [2020] O.J. No. 69 (QL), 2020 CarswellOnt 74 (WL Can.), affirming a decision of Perell J., 2019 ONSC 1445, 145 O.R. (3d) 515, 14 L.C.R. (2d) 150, [2019] O.J. No. 1133 (QL), 2019 CarswellOnt 3149 (WL Can.). Appeal dismissed.
Lincoln Caylor and Nina Butz, for the appellant.
Steve J. Tenai and Sanj Sood, for the respondent.
The judgment of Wagner C.J. and Karakatsanis, Rowe and Kasirer JJ. was delivered by
The Chief Justice —
I. Introduction
[1] In this appeal, H.M.B. Holdings Limited (“H.M.B.”) seeks an order pursuant to Ontario’s Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5 (“REJA”), for the registration of a default judgment it obtained in British Columbia against Antigua and Barbuda (“Antigua”) to enforce a judgment granted by the Judicial Committee of the Privy Council awarding compensation for expropriation. The problem is one of statutory interpretation, and in particular, the interpretation and application of ss. 3(b) and 3(g) of the REJA. If either of these provisions applies, H.M.B. is barred from registering the default judgment under the REJA.
[2] The application judge found that both provisions barred registration under the statute. A majority of the Court of Appeal of Ontario upheld the application judge’s conclusion on the basis of s. 3(b) alone. For the reasons that follow, I agree with the Court of Appeal and conclude that this appeal must be dismissed.
II. Facts
[3] In 2007, Antigua, a country comprised of several islands in the Caribbean, expropriated property owned by H.M.B., a private company incorporated in Antigua pursuant to the country’s Land Acquisition Act, 1958, c. 233. Litigation ensued, and in May 2014, the Judicial Committee of the Privy Council ordered Antigua to compensate H.M.B. for the expropriation (No. 2013/0017 (“Privy Council Judgment”)).
[4] Over two years later, in October 2016, H.M.B. brought a common law action in British Columbia to enforce the Privy Council Judgment in that province. H.M.B.’s action was timely under British Columbia’s Limitation Act, S.B.C. 2012, c. 13, which provides for a ten-year limitation period to enforce a foreign judgment in the province through a common law action (s. 7). However, it is worth noting that had H.M.B. brought a common law action to enforce the Privy Council Judgment in Ontario, it would have been time-barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, which provides for a two-year limitation period (s. 4).
[5] Antigua did not defend the action. As a result, in April 2017, H.M.B. obtained a default judgment for the enforcement of the Privy Council Judgment against Antigua in the British Columbia Supreme Court (No. S169831 (“British Columbia Judgment”)). One year later, in May 2018, H.M.B. commenced an application in Ontario to enforce the British Columbia Judgment by having it registered under the REJA. The REJA provides for a six-year limitation period for the registration of judgments, more generous than the two-year limitation period for enforcement by way of a common law action (s. 2; Limitations Act, 2002, s. 4). Antigua opposed the application.
[6] At the time of the British Columbia action, Antigua did not have a physical presence in the province. It did not have a consulate, an office or any premises in that province. Nor did it have any employees or agents in the province or direct any marketing specifically at residents of British Columbia.
[7] However, the Antiguan government did have contracts with four “Authorized Representatives” with businesses, premises and employees in British Columbia for the purposes of its Citizenship by Investment Program (“CIP”). The CIP aims to encourage investments in Antigua’s real estate, businesses and National Development Fund by granting citizenship to investors and their families in exchange for such investments.
[8] Antigua engages Authorized Representatives to facilitate introductions to potential investors, in exchange for which they are paid something akin to a finder’s fee. However, Authorized Representatives have no authority to review or approve CIP applications. They merely assist prospective investors by providing them with information about the CIP and completing preliminary forms to send to “Authorized Agents” based in Antigua.
[9] Authorized Agents assist applicants in obtaining information about the CIP application process, collect the required fees and send the completed applications to the Citizenship Investment Unit (“CIU”), the Antiguan government agency that administers the CIP. The CIU makes the ultimate decision on whether to approve or deny an investor’s application. Authorized Representatives do not liaise with the CIU or the Antiguan government and are paid their finder’s fee through an Authorized Agent if an application is accepted.
[10] As mentioned above, at the time of the British Columbia action, Antigua did not have any physical presence in the province for any purpose related to the CIP; it did not deal or contract with prospective investors or approve applications in the province, nor did it advertise the CIP in the province beyond engaging the Authorized Representatives to disseminate information about the program. All four Authorized Representatives had limited term appointments with the CIP and carried on other businesses that were unrelated to the program in British Columbia and independent of the business of the Antiguan government.
[11] Moreover, the CIP did not specifically target residents of Canada or British Columbia. From its inception in October 2013 to June 30, 2018, only 9 CIP applications were made by persons born in Canada out of a total of 1,547 applications from around the world.
III. Relevant Legislation
[12] The following provisions of the REJA are relevant to this appeal:
Definitions 1 (1) In this Act,
“judgment” means a judgment or an order of a court in any civil proceedings whereby any sum of money is payable, and includes an award in proceedings on an arbitration if the award has, in pursuance of the law in force in the province or territory where it was made, become enforceable in the same manner as a judgment given by a court therein;
“judgment creditor” means the person by whom the judgment was obtained, and includes the executors, administrators, successors and assigns of that person;
“judgment debtor” means the person against whom the judgment was given, and includes any person against whom the judgment is enforceable in the place where it was given;
“original court”, in relation to a judgment, means the court by which the judgment was given;
“registering court”, in relation to a judgment, means the court in which the judgment is registered under this Act.
Registration of judgment 2 (1) Where a judgment has been given in a court in a reciprocating state, the judgment creditor may apply to any court in Ontario having jurisdiction over the subject-matter of the judgment, or, despite the subject-matter, to the Superior Court of Justice at any time within six years after the date of the judgment to have the judgment registered in that court, and on any such application the court may, subject to this Act, order the judgment to be registered.
Conditions of registration 3 No judgment shall be ordered to be registered under this Act if it is shown to the registering court that,
(b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit during the proceedings to the jurisdiction of that court; or
(g) the judgment debtor would have a good defence if an action were brought on the original judgment
IV. Judicial History
A. Ontario Superior Court of Justice, 2019 ONSC 1445, 145 O.R. (3d) 515 (Perell J.)
[13] H.M.B. sought to enforce the British Columbia Judgment in Ontario pursuant to the REJA. Antigua resisted the application on the basis of both ss. 3(b) and 3(g) of the statute. The application judge accepted Antigua’s arguments and dismissed H.M.B.’s application.
[14] First, the application judge found that s. 3(b) of the REJA precluded the registration of the British Columbia Judgment because Antigua was not “carrying on business” in British Columbia. According to Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, “carrying on business” in a jurisdiction requires some form of actual, not only virtual, presence in the jurisdiction. Antigua had no physical presence in British Columbia, nor did it carry on any sustained business activity in the province. Moreover, the CIP was not a business activity. It was a government program aimed at recruiting new citizens to start businesses in Antigua. Even if one assumed that the CIP was a business activity, the four Authorized Representatives in British Columbia were not Authorized Agents of the Antiguan government; they were carrying on their own businesses independently.
[15] Second, and in the alternative, the application judge found that the registration of the British Columbia Judgment was precluded by s. 3(g) of the REJA, which bars registration if “the judgment debtor would have a good defence if an action were brought on the original judgment”. The application judge’s analysis turned on the meaning of “original judgment” in this provision. He concluded that “original judgment” referred to the first-instance Privy Council Judgment on the merits, not the British Columbia Judgment, which was a derivative of a judgment of a non-reciprocating jurisdiction. According to the application judge, interpreting “original judgment” to include a judgment of this nature would circumvent the general policy of the Ontario law about foreign judgments of non-reciprocating jurisdictions. It would allow the registration in Ontario of a judgment granted by a court of another jurisdiction by an indirect method when it is not permitted to be done directly. As a result, the “original judgment” was the Privy Council Judgment, not the British Columbia Judgment, and as Antigua would have a limitations-period defence if H.M.B. brought a direct action to enforce the Privy Council Judgment, s. 3(g) barred registration.
B. Court of Appeal for Ontario, 2020 ONCA 12, 149 O.R. (3d) 440 (Simmons and Pardu JJ.A., Nordheimer J.A. Dissenting)
[16] On appeal, H.M.B. challenged the application judge’s approach to both ss. 3(b) and 3(g).
[17] A majority of the Court of Appeal for Ontario affirmed the application judge’s analysis of “carrying on business” under s. 3(b) of the REJA and dismissed the appeal on this basis. It found that the application judge had not erred in summarizing or applying the legal test for what constitutes carrying on a business, and that his factual finding that Antigua was not carrying on business in British Columbia was entitled to deference. As a result, there was no basis for appellate intervention on this point. As this was sufficient to dismiss the appeal, the majority found it unnecessary to assess the application judge’s interpretation of “original judgment” under s. 3(g) of the REJA.
[18] Nordheimer J.A., in dissent, would have allowed H.M.B.’s appeal and ordered that the British Columbia Judgment be registered. He held that the application judge had erred in relying on Van Breda, which is about jurisdiction at first instance and does not apply to the recognition and enforcement of foreign judgments. Instead, the governing case is Chevron Corp. v. Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69, which calls for a liberal approach to the recognition and enforcement of foreign judgments. As a result, the requirement of “carrying on business” under s. 3(b) of the REJA should be interpreted as setting a very low bar, which was readily satisfied by Antigua’s conduct in British Columbia through the CIP. Nordheimer J.A. held that the application judge had committed a palpable and overriding error in finding otherwise.
[19] Turning to the s. 3(g) issue, Nordheimer J.A. found that “original judgment” in this provision referred to the British Columbia Judgment. Section 1(1) of the REJA defines “original court” as “the court by which the judgment was given”, which in this case, Nordheimer J.A. held, referred to the Supreme Court of British Columbia since the judgment sought to be registered was the British Columbia Judgment. As a matter of statutory interpretation, the presumption of consistent expression suggested that “original judgment” referred to the British Columbia Judgment as well. There was nothing to rebut the presumption in this case. Indeed, the application judge’s inconsistent interpretation of these terms undermined the purpose of the REJA, which is to facilitate the enforcement of judgments properly issued by reciprocating jurisdictions. As Antigua had no good defence to the British Columbia Judgment, Nordheimer J.A. held that s. 3(g) did not bar the registration of that judgment and would have ordered that it be registered.
V. Submissions of the Parties
[20] H.M.B. argues that the interpretation of “carrying on business” in s. 3(b) must reflect the “generous and liberal” approach to judgment recognition and enforcement outlined in Chevron. Jurisdiction simpliciter principles are inapplicable, and the application judge erred in relying on Van Breda. Instead, the test in Wilson v. Hull (1995), 128 D.L.R. (4th) 403 (Alta. C.A.), applies. On the basis of Wilson or any other test for “carrying on business”, Antigua’s “marketing and selling of Antiguan citizenship” in British Columbia meets the standard of carrying on business (A.F., at para. 27). With respect to s. 3(g), H.M.B. argues that a consistent interpretation of the word “original” throughout the statute compels the conclusion that the “original judgment” is the British Columbia Judgment, to which Antigua has no defence. As a result, neither s. 3(b) nor s. 3(g) of the REJA bars the registration of the judgment.
[21] Antigua argues that the application judge applied the correct test for “carrying on business” under s. 3(b), which has its origins in the common law of presence-based jurisdiction simpliciter. It also submits that there is no reviewable error in the application judge’s conclusion that Antigua was not carrying on business in British Columbia. In relation to s. 3(g), Antigua argues that the “original judgment” is the Privy Council Judgment, to which it has a limitations-period defence. Moreover, concluding that the derivative British Columbia Judgment is the “original judgment” would circumvent Ontario’s statutory limitation period for the registration of foreign judgments, permitting H.M.B. to do indirectly what it cannot do directly. As a result, ss. 3(b) and 3(g) of the REJA both bar the registration of the British Columbia Judgment under the REJA.
VI. Issues on Appeal
(a) Is H.M.B. precluded by s. 3(b) of the REJA from having the British Columbia Judgment registered in Ontario because Antigua was not “carrying on business” in British Columbia at the time of the action brought in that province?
(b) If not, is H.M.B. precluded by s. 3(g) of the REJA from having the British Columbia Judgment registered in Ontario on account of Antigua having a good defence on the original judgment?
VII. Analysis
[22] H.M.B. seeks to enforce the Privy Council Judgment by bringing an application to register the British Columbia Judgment under the REJA. The statute allows a person who has obtained a judgment in another jurisdiction (the “judgment creditor”) to apply to register the judgment in Ontario and creates a process by which the person against whom the judgment was obtained (the “judgment debtor”) can resist its registration. A judgment registered under the REJA is treated as if it were a judgment originally issued by an Ontario court (s. 4).
[23] The REJA is not the only route by which H.M.B. could try to enforce the Privy Council Judgment in Ontario. H.M.B. could also commence a separate common law action for enforcement.[1] However, the REJA provides an easy, economical and expedient route for enforcing foreign judgments (T.D.I. Hospitality Management Consultants Inc. v. Browne (1994), 117 D.L.R. (4th) 289 (Man. C.A.), at p. 295; Wilson, at pp. 412-13; Impagination Inc. v. Baird (2001), 202 Nfld. & P.E.I.R. 300 (Nfld. S.C.T.D.), at paras. 26-27; S. G. A. Pitel and N. S. Rafferty, Conflict of Laws (2nd ed. 2016), at pp. 201 and 203-4; S. G. A. Pitel et al., Private International Law in Common Law Canada: Cases, Text and Materials (4th ed. 2016), at p. 481). It provides a number of statutory benefits: six years to register the judgment from the date of issue (s. 2(1)), registration order made without notice to the judgment debtor (s. 2(2)), and a short window, one month, following notice of the registration during which the judgment debtor can seek to have the registration set aside (s. 6). But these statutory benefits come at a cost. Only judgments from reciprocating jurisdictions may be registered under the REJA. British Columbia is a reciprocating jurisdiction under REJA, but Antigua is not. Moreover, recognition of judgments under REJA is subject to seven defences set out in s. 3. If any one defence is established, the judgment cannot be registered. At issue in this appeal are two of the defences (ss. 3(b) and 3(g)).
A. Preliminary Issue
[24] As a preliminary matter, the REJA applies only to “a judgment or an order of a court in any civil proceedings whereby any sum of money is payable” (ss. 1(1) “judgment” and 2(1)). If the judgment in issue does not meet the statutory definition of “judgment” in s. 1(1), it cannot be registered pursuant to the REJA and there is no need to consider the s. 3 defences to registration.
[25] It is an open question whether the derivative British Columbia Judgment — a judgment that itself enforces a judgment of a non-reciprocating jurisdiction — falls within the definition of “judgment” in the REJA and is capable of being registered under the statute. On the one hand, there is support for the view that the definition of “judgment” excludes derivative judgments because they are not judgments whereby any sum of money is payable, and because their inclusion would be contrary to the purpose of reciprocal enforcement statutes and the principle of reciprocity (see, for example, Owen v. Rocketinfo Inc., 2008 BCCA 502, 86 B.C.L.R. (4th) 64, at paras. 20-21; Strategic Technologies Pte Ltd. v. Procurement Bureau of the Republic of China Ministry of National Defence, [2020] EWCA Civ 1604, [2021] 2 W.L.R. 448, at paras. 54-61). On the other hand, there is also support for the view that the definition of “judgment” in the REJA includes derivative judgments, namely this Court’s obiter statement in Chevron that “under provincial legislation, a recognition and enforcement judgment issued in one province may be capable of being ‘registered’ in another province” (para. 49).
[26] In this appeal, both parties accept, as the courts below did, that the British Columbia Judgment is a “judgment” falling within the scope of the REJA, and the Court is without the benefit of full argument on this issue. Moreover, as my analysis below demonstrates, if the British Columbia Judgment is assumed to fall within the definition of “judgment” in the REJA, the application judge’s finding that s. 3(b) bars registration of the British Columbia Judgment must be affirmed. It is therefore unnecessary for me to decide whether derivative judgments can be registered under the REJA, because this appeal must be dismissed in any event. As such, these reasons proceed on the assumption that the British Columbia Judgment falls within the REJA’s scope, without deciding the issue. I leave for another day the question of whether derivative judgments are, in fact, contemplated by the definition of “judgment” in the REJA.
B. Was Antigua “Carrying on Business” in British Columbia Within the Meaning of Section 3(b) of the REJA?
[27] Section 3(b) of the REJA provides:
3 No judgment shall be ordered to be registered under this Act if it is shown to the registering court that,
. . .
(b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit during the proceedings to the jurisdiction of that court; . . .
[28] Section 3(b) places two burdens on a judgment debtor seeking to raise this defence. First, the judgment debtor must establish that they were not carrying on business or ordinarily resident in the jurisdiction of the original court. Second, the judgment debtor must also show that they did not voluntarily appear or otherwise submit to the original court’s jurisdiction during the proceedings the judgment creditor brought in that court. If the judgment debtor shows the Ontario court that these two conditions are met, then s. 3(b) bars the registration of the judgment.
[29] In the present appeal, the parties agree that Antigua is not ordinarily resident in British Columbia and did not voluntarily appear or otherwise submit to the jurisdiction of the Supreme Court of British Columbia during the proceedings H.M.B. commenced in that province. As a result, the only issue in the application of s. 3(b) in this case is whether Antigua was “carrying on business” in British Columbia.
(1) Interpretation of “Carrying on Business”
[30] The REJA does not define “carrying on business”, but this concept has a long history at common law. As a matter of statutory interpretation, common law terms and concepts are presumed to retain their common law meaning when used in legislation (R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at § 17.14).
[31] At common law, the concept of “carrying on business” forms part of the law on the traditional bases of jurisdiction. As this Court explained in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, under the traditional bases of jurisdiction at common law, a foreign judgment could be recognized and enforced in Canada only if the defendant in the original action had been present in the foreign jurisdiction at the time of the action there or had consented in some way to the foreign court’s jurisdiction (p. 1092; see also Chevron, at para. 29; Pitel and Rafferty, at pp. 164 and 168). In this context, a corporation is said to be “present” in a jurisdiction if it is established that the corporation was “carrying on business” in that jurisdiction at the time of the action (Chevron, at para. 85; Pitel and Rafferty, at p. 170; J. Walker, Castel & Walker: Canadian Conflict of Laws (6th ed. (loose-leaf)), at p. 14-24).
[32] The Canadian common law of recognition and enforcement has developed beyond the traditional bases of jurisdiction. Notably, in Morguard itself, the Court held that the judgment of a court in one province could be recognized in another province on the basis of a “real and substantial connection” to the original jurisdiction rather than the traditional bases of jurisdiction. Nonetheless, the common law bases of presence and consent remain important, and in this case are critical to understanding s. 3(b) of the REJA.
[33] The REJA was first enacted in 1929. It is based on a model statute approved by the Conference of Commissioners on Uniformity of Legislation in Canada in 1924, which in turn was based on the United Kingdom’s Administration of Justice Act, 1920, 10 & 11 Geo. 5, c. 81 (see Proceedings of the Seventh Annual Meeting of the Conference of Commissioners on Uniformity of Legislation in Canada, App. G, The Reciprocal Enforcement of Judgments Act (1924)). Section 3(b), which has not changed since 1929, is nearly identical to s. 9(2)(b) of the United Kingdom’s statute.
[34] Section 3(b) codified the traditional common law bases of jurisdiction as a prerequisite for registration. In Morguard, the Court recognized the connection between the traditional bases of jurisdiction and British Columbia’s equivalent to s. 3(b) (p. 1111). Academic commentators also accept the connection between the traditional bases of jurisdiction and s. 3(b) (Pitel et al., at p. 481). Likewise, English jurisprudence recognizes that the Administration of Justice Act, 1920, is “based on the common law and fall[s] to be interpreted in accordance with the common law” and that the provision equivalent to s. 3(b) reflects common law principles of jurisdiction (Vizcaya Partners Ltd. v. Picard, [2016] UKPC 5, [2016] 3 All E.R. 181, at paras. 5 and 8). Moreover, the codification of the traditional common law bases of jurisdiction in s. 3(b) is reflected in the language of the provision. Section 3(b) plainly addresses presence-based jurisdiction in its references to carrying on business and residence, and consent-based jurisdiction in its reference to voluntary appearance or submission to the court’s jurisdiction.
[35] As a result, contrary to the appellant’s assertion, jurisdiction simpliciter principles are helpful in interpreting s. 3(b) of the REJA. In particular, the jurisprudence governing the traditional bases of jurisdiction codified in s. 3(b) is directly applicable to assist in the interpretation and application of this provision. Chevron is helpful in this case to the extent that it clarifies the traditional grounds of jurisdiction. I turn now to that jurisprudence and the meaning of “carrying on business”.
[36] Before Chevron, courts generally relied on English cases, and in particular the English Court of Appeal’s decision in Adams v. Cape Industries Plc., [1990] 1 Ch. 433, to interpret the meaning of “carrying on business”. In Adams, Lord Justice Slade, writing for a unanimous court, held that English courts will be likely to treat a foreign corporation as present within the