



COURT OF APPEAL FOR ONTARIO

CITATION: Brahma Finance (BVI) Limited v. Datawind Inc., 2018
    ONCA 1003

DATE: 20181206

DOCKET: C65364

Juriansz, Brown and Roberts JJ.A.

BETWEEN

Brahma Finance (BVI) Limited and Nicholas Eaton
    Crocker Barham

Applicants (Respondents)

and

Datawind Inc.

Respondent (Appellant)

Katrina Marciniak, for the appellant

Paul-Erik Veel and Madison Robins, for the respondents

Heard: December 3, 2018

On appeal from the order of Justice Heather McArthur of
    the Superior Court of Justice, dated April 5, 2018.

REASONS FOR DECISION

[1]

The appellant, Datawind Inc., appeals the order
    of the application judge registering the June 21, 2017 order (the Costs
    Order) of the United Kingdom High Court of Justice, Chancery Division (the
    Foreign Court) pursuant to the
Convention for the Reciprocal
    Recognition and Enforcement of Judgments in Civil and Commercial Matters
(the Convention) set out in the Schedule to the
Reciprocal
    Enforcement of Judgments (U.K.) Act
, R.S.O. 1990, c. R.6
    (the Act).

[2]

At the hearing of the appeal, we dismissed the
    appeal, with reasons to follow. These are those reasons.

[3]

In its factum, Datawind argues that for the purposes of
    the Convention the Foreign Court could not be regarded as having jurisdiction
    because Datawind was not a named plaintiff or defendant in the U.K. proceeding,
    it was merely a respondent to the third-party cost application brought against
    it by the respondents under rule 46.2 of the United Kingdom
Civil
    Procedure Rules
. However, at the hearing of the appeal
    Datawind clarified that its primary arguments were that the Costs Order could
    not be registered under the Convention as it is not for a definite amount and
    that Datawind had been denied natural justice in the third-party cost
    proceeding. Datawind is no longer questioning the jurisdiction of the Foreign
    Court.


[4]

That was an appropriate position for Datawind to
    take given the circumstances of this case: (i) the third-party cost proceeding is
    an available procedure under the U.K.
Civil Procedure Rules
; (ii)
    w
hen served with a notice of the respondents intention to
    seek costs against it, Datawind attorned to the jurisdiction of the Foreign
    Court, consenting to an order joining it to the proceedings for the purposes of
    costs; (iii) Datawind opposed the third-party cost application on the merits; (iv)
    a real and substantial connection existed between the Foreign Court and the
    action in which the third-party cost application arose because Datawind was the
    sole shareholder of the claimant, Tablet Investments (Guernsey) Limited, which
    had commenced the action in the Foreign Court; and (v) Datawind is a person against
    whom the judgment is enforceable under the law of the territory of the Foreign
    Court. Accordingly, the Foreign Court clearly had jurisdiction over Datawind
    for the purposes of the Convention: Arts. I(f) and V(1)(f)
[1]
; Janet Walker,
Canadian
    Conflict of Laws,
loose-leaf (2017), 6th ed. (Toronto:
    LexisNexis, 2005), at p. 14-116.

[5]

However, Datawind submits the application judge
    committed two errors in registering the Costs Order.

[6]

First, Datawind contends that the application
    judge erred by registering the Costs Order when it was not an order for a
    definite and ascertainable sum of money. Para. 1 of the Costs Order requires
    Datawind to pay the respondents costs incurred in this action to be the subject
    of detailed assessment on the standard basis if not agreed; Para. 3 requires
    Datawind to make an interim payment on account of the [respondents] said
    costs in the sum of £87,000 by 4 pm on 5 July 2017; and para. 4 orders Datawind
    to pay the respondents costs of the third-party cost application summarily
    assessed at £21,756 by 4 pm on 5 July 2017. Datawind submits that only the
    costs ordered by para. 4 constitute a final order for a definite sum that is
    registrable under the Convention.

[7]

We do not agree. Art. II(3) of the Convention
    states that its enforcement provisions apply only to a judgment whereby a sum
    of money is made payable. The interim payment on account of costs contained in
    para. 3 of the Costs Order constitutes such a judgment. Its payment was due by
    a specified date and payment of the amount was not made conditional upon the
    future conduct of an assessment. Moreover, in the third-party costs proceeding,
    the presiding officer noted that [i]t is accepted, on behalf of [Datawind], that
    it is appropriate to make a payment on account of costs: [2017] EWHC 3479
    (Ch), at para. 48. Finally, although para. 1 of the Costs Order contemplates a
    future assessment process to fix the amount of third party costs payable in
    addition to the interim payment on account, the respondents concede in para. 84
    of their factum that they have not commenced such an assessment procedure and
    are by now well out of time to do so.

[8]

Second, Datawind contends that the Costs Order
    should not be registered as it was obtained through a process that involved a
    denial of natural justice. Datawind argues that the absence of the ability to
    cross-examine the respondents on their third party cost materials in the
    Foreign Court denied it natural justice.

[9]

In advancing this argument, Datawind draws on
    the defence of lack of natural justice to a common law action to enforce a foreign
    judgment. In such actions, the enforcing court must be satisfied that minimum
    standards of fairness have been applied by the foreign court:
Beals
    v. Saldanha
, 2003 SCC 72, [2003] 3 S.C.R. 416, at para.
    60.

[10]

In
Society of Lloyds v. Saunders
(2001), 55 O.R. (3d) 688 (C.A.), this court was not prepared to
    decide whether a denial of natural justice not specifically referred to in
    Arts. IV(1) and (2) of the Convention is included within the ambit of Art.
    IV(1)(e), which provides that registration of a judgment shall be refused or
    set aside if the enforcement of the judgment would be contrary to public
    policy in the territory of the registering court: at para. 20. Instead, this
    court assumed, for the purpose of its analysis, that a denial of natural
    justice can be considered to be contrary to public policy and therefore within
    the public policy ground for refusal to register under Art. IV(1)(e) of the Convention.
    No denial of natural justice was found.

[11]

Adopting the same approach, we see no denial of
    natural justice to Datawind in the U.K. third-party cost proceedings. During
    its participation in those proceedings, Datawind raised no objection to the absence
    of cross-examination in the process.  Moreover, the procedure on the U.K.
    third-party cost application afforded Datawind a full opportunity to respond to
    the respondents materials and to make submissions  written and oral  on the
    application. The process under the U.K.
Civil Procedures Rules
more than met minimum standards of fairness, and we see no basis
    for an argument that enforcement of the Costs Order would be contrary to the
    public policy of Ontario.

[12]

For those reasons, we see no error by the application
    judge in registering the Costs Order pursuant to the Convention. The appeal is
    dismissed.

[13]

Based on the agreement of the parties, Datawind
    shall pay the respondents their costs of this appeal fixed in the amount of
    $9,300, inclusive of disbursements and applicable taxes.

R.G. Juriansz J.A.
David Brown J.A.
L.B. Roberts J.A.





[1]

Article I(f) states: In this Convention  judgment debtor
    means the person against whom the judgment was given and includes any person
    against whom the judgment is enforceable under the law of the territory of
    origin. Article V(1)(f) states: For the purposes of Article IV(1)(c) the
    original court shall be regarded as having jurisdiction if  (f) the
    jurisdiction of the original court is otherwise recognized by the registering
    court.


