



COURT OF APPEAL FOR ONTARIO

CITATION: H.M.B. Holdings Limited v. Antigua and Barbuda,
    2020 ONCA 12

DATE: 20200109

DOCKET: C66765

Simmons, Pardu and Nordheimer JJ.A.

BETWEEN

H.M.B. Holdings Limited

Applicant (Appellant)

and

The Attorney General
    of Antigua and Barbuda

Respondent (Respondent)

Lincoln Caylor and Nina Butz, for the appellant

Steve Tenai and Sanj Sood, for the respondent

Heard: November 7, 2019

On appeal from the order of
    Justice Paul Perell of the Superior Court of Justice, dated March 4, 2019,
    reported at 2019 ONSC 1445.

Pardu J.A.:

A.

Overview

[1]

The underlying facts in this conflict of laws case are undisputed.
    Antigua and Barbuda (Antigua) expropriated property owned by H.M.B. Holdings
    Limited (HMB). The Judicial Committee of the Privy Council ordered Antigua to
    compensate HMB for the expropriation (Privy Council judgment).

[2]

HMB brought a common law action to enforce the Privy Council judgment in
    British Columbia. The British Columbia Supreme Court granted HMBs action
    (British Columbia judgment).

[3]

HMB then applied, pursuant to the
Reciprocal Enforcement of
    Judgments Act
, R.S.O. 1990, c. R.5 (
REJA
)
, to register the British Columbia judgment in Ontario. The
    Superior Court of Justice of Ontario dismissed HMBs application. HMB now
    appeals from this dismissal.

[4]

The application judge refused registration on several bases. It was
    common ground before him that section 3(b) of the
REJA
required  as a
    prerequisite to registration in Ontario  Antigua to have been carrying on
    business in British Columbia at the time of the lawsuit there. The application
    judge found as a fact that Antigua was not carrying on business in British
    Columbia at the relevant time.

[5]

The application judge also considered section 3(g) of the
REJA
,
    which bars registration under the
REJA
if a judgment debtor would have a good defence if an
    action were brought on the original judgment. The parties
    disputed whether original judgment referred to the British Columbia judgment
  or the Privy Council judgment.

[6]

The application judge found that it would circumvent the
REJA
s
    purposes to permit registration in Ontario of a ricochet judgment, which is a
    judgment of a reciprocating province that was itself the result of a common law
    action to enforce a judgment obtained in a non-reciprocating jurisdiction under
    the
REJA
. Accordingly, original judgment could not include ricochet
    judgments. In turn, the original judgment in this case was the Privy Council
    judgment. Since Antigua would have had a good defence under the
Limitations
    Act 2002
, S.O. 2002, c. 24, Sch. B,
had
    a common law action to enforce the Privy Council judgment been brought in
    Ontario, registration should not be permitted.

[7]

HMB argues that the application judge erred in failing to:

(1)

apply the legal criteria for
    carrying on business more liberally, to find Antigua was carrying on business
    in British Columbia at the relevant time; and

(2)

interpret original judgment to
    mean the British Columbia judgment, not the Privy Council judgment.

[8]

I would not give effect to these arguments and would dismiss the appeal.
    The application judge did not err in finding that Antigua was not carrying on
    business in British Columbia at the relevant time. Consequently, section 3(b)
    of the
REJA
bars HMB from registering the British Columbia judgment in
    Ontario under the
REJA
. It is thus unnecessary to consider the second
    issue regarding the meaning of original judgment.

B.

Background

[9]

This appeal requires interpreting and applying the
REJA
. The
    relevant statutory provisions are as follows:

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; (jugement)

judgment creditor means the person by whom the
    judgment was obtained, and includes the executors, administrators, successors
    and assigns of that person; (créancier en vertu du jugement)

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; (débiteur en vertu du jugement)

original court, in relation to a judgment, means
    the court by which the judgment was given; (tribunal dorigine)

registering court, in relation to a judgment, means
    the court in which the judgment is registered under this Act. (tribunal
    denregistrement)



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,

(a) the original court acted without jurisdiction; or

(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
.

[Emphasis added].

[10]

For
    the purposes of determining whether Antigua was carrying on business in British
    Columbia, the relevant activity is Antiguas Citizenship by Investment
    program (CIP).

[11]

The
    CIP aimed to encourage investments in real estate, businesses, and in Antiguas
    National Development Fund by offering citizenship to investors and their
    families in exchange for such investments. The CIP was administered by an
    Antiguan government agency, the Citizenship Investment Unit (CIU).

[12]

The
    Antiguan government engaged Authorized Representatives to facilitate
    introductions to potential investors. As mandated by legislation, the CIU
    appoints representatives and service providers to promote, advertise, and
    disseminate information about the CIP.

[13]

At
    the time of the British Columbia action, Antigua had four Authorized Representatives
    in that province. These were limited term appointments. These representatives
    were not agents of the Antiguan government. They carried on other businesses
    unrelated to the CIP.

[14]

Authorized
    Representatives have no authority to review or approve any application. They
    assist prospective investors by providing them with information about CIP and completing
    preliminary forms to send to Authorized Agents based in Antigua.

[15]

Authorized
    Agents assist applicants to obtain information for the application process,
    collect the required fees, and send the completed package to the CIU. In
    Antigua, the CIU decides to approve or deny the application. Authorized
    Representatives do not liaise with the Antiguan government or the CIU. If the
    application is ultimately approved, the Authorized Representative may be paid a
    commission, through the Authorized Agent.

[16]

The
    CIP program did not particularly target Canadian or British Columbia residents.
    Since the programs inception in October 2013, only nine CIP applications were
    made by persons born in Canada.

[17]

Antigua
    did not maintain an office in British Columbia. It did not have employees or
    agents there. It did not attend in British Columbia for any purpose related to
    the CIP. It did not contract with prospective investors there or approve
    applications there. It did not deal with prospective investors there, did not
    trade in goods there, or engage in regular advertising of services there.

C.

Analysis

[18]

Antigua
    was served with the originating documents in the British Columbia action but
    did not appear or otherwise submit during that proceeding to the British
    Columbia courts jurisdiction. Accordingly, under s. 3(b) of the
REJA
,
    Antigua had to be carrying on businesswithin the jurisdiction of the original
    court for registration to occur under the
REJA
. For the purposes of
    this issue, original court meant the Supreme Court of British Columbia.

[19]

The
    parties agreed that if Antigua did not carry on business in British Columbia,
    the British Columbia judgment could not be registered in Ontario.

(1)

Application judges decision

[20]

The
    application judge observed that whether a party is carrying on business in a
    province is a question of fact. Citing
Chevron Corp. v. Yaiguaje,
2015 SCC 42, [2015] 3 S.C.R. 69
, the
    application judge noted that for a party to be carrying on business within a
    province, he or she must have a meaningful presence in the province and that
    presence must be accompanied by a degree of business activity over a sustained
    period of time.

[21]

He
    also referred to the holding in
Club Resorts Ltd. v. Van Breda
, 2012
    SCC 17, [2012] 1 S.C.R. 572, at para. 87, that carrying on business requires
    some form of actual, not only virtual, presence in the jurisdiction, such as
    maintaining an office there or regularly visiting the territory of the
    particular jurisdiction. Active advertising in the jurisdiction and an
    internet presence would not suffice to establish that a corporation was
    carrying on business in a particular jurisdiction.

[22]

The
    application judge concluded that Antigua was not carrying on business in
    British Columbia:

[52] In my opinion, the Antiguan
    Government was not carrying on business in British Columbia. It had no physical
    presence in the province, and it did not carry on any sustained business
    activity in the province. The four Authorized Representatives in British
    Columbia were undoubtedly carrying on business in British Company [
sic
],
    but the representatives were not agents or Licensed Agents of the Antiguan
    Government, and they were carrying on their own businesses that were
    independent of the businesses of the Antiguan Government, even if one assumes
    that the Citizenship by Investment Program is a business as distinct from a
    government activity that has a commercial aspect to it.



[54] The Antiguan Governments
    Program is not particularly focused on any jurisdiction - other than Antigua
    and Barbuda - where it appears to have been quite successful in bring
    entrepreneurs to the country. The Program has no particular focus on British
    Columbia or on Canada for that matter. Since the inception of the Program,
    there have been 1,547 applications to the Antiguan Government from around the
    world of which only nine have been from persons born in Canada.

(2)

Arguments on appeal

[23]

HMB
    argues that the application judge ought to have interpreted the legal criterion
    more liberally, given the desirability of recognizing judgments from sister
    provinces. HMB relies on
Wilson v. Hull
, 1995 ABCA 374, 34 Alta. L.R.
    (3d) 237, submitting that carrying on business only requires a defendant to
    have some direct or indirect presence in the state asserting jurisdiction,
    accompanied by a degree of business activity which is sustained for a period of
    time.

[24]

HMB
    submits that considering the usual indicia outlined in
Wilson

    physical presence in the jurisdiction, employment of salespersons, agents or
    other representatives or employees, commercial relationships with other
    residents of the jurisdiction, and advertising business activity or selling of
    products (here, they suggest citizenship)  mandates a conclusion that Antigua
    was carrying on business in British Columbia.

[25]

In
    oral submissions, counsel for the appellant conceded that the Authorized
    Representatives in British Columbia were not agents or employees of Antigua. Counsel
    also acknowledged Antigua had no physical presence in British Columbia. Despite
    this, he argued that the presence of the Authorized Representatives in British
    Columbia, involved in the process of selling passports through the CIP, was
    sufficient to constitute carrying on business in that location.

[26]

Antigua
    asserts that the record supports the application judges factual findings, and
    that there were no compelling indicia that Antigua was carrying on business in
    British Columbia. They submit that the application judges decision was
    consistent with
Wilson
and other existing jurisprudence that assess
    the degree of connection required to constitute carrying on business in a
    place. Antigua relies on
Sgromo v. Scott
,
2018 ONCA 5, 78 B.L.R. (5th) 37, and
Yemec v.
    Atlantic Lottery Corp.
, 2012 ONSC 4207, 41 C.P.C. (7th) 362, to point out
    that even active advertising within a province would not be enough to establish
    that an entity was carrying on business in that province. Additionally,
    marketing products through an agency also would not mean that the party
    retaining the agency was therefore carrying on business in the province,
    particularly where the party did not maintain a physical presence in nor
    regularly visit the jurisdiction.

(3)

Conclusion

[27]

It
    is common ground that deference is owed to the factual finding that Antigua was
    not carrying on business in British Columbia. Absent a palpable and overriding
    error, there is no basis for appellate intervention.

[28]

The
    application judge did not err in summarizing or applying the legal test for
    what constitutes carrying on business. His analysis was consistent with
Wilson
,
    which was relied upon by the HMB and approved of in
Chevron.
In
Wilson
,
    a buyer made regular purchases of equipment in Idaho from a seller located in
    Idaho, and transported that equipment to Alberta over a period of 11 months. The
    majority in
Wilson
found this activity did not amount to the buyer
    carrying on business in Idaho.

[29]

I
    can identify no error in the application judges assessment of whether Antigua
    was carrying on business in British Columbia. He weighed a multitude of factual
    circumstances and concluded the test was not met. This factual finding is owed
    deference.

[30]

This
    is quite apart from the question of whether the activity in question 
    government promotion of investment in Antigua in exchange for citizenship  can
    be said to amount to business at all.

[31]

This
    is sufficient to support dismissing the application for registration of the
    British Columbia judgment under the
REJA
and dismissing this appeal.

[32]

The
    trial judges interpretation of carrying on business does not deprive parties
    like HMB of a remedy, provided they bring the action within the applicable
    limitation period. HMB could have brought a common law action in Ontario upon
    the Privy Council order of May 27, 2014, provided it did so within the
    applicable two-year limitation period in Ontario. There would have been no
    jurisdictional hurdle to bringing such an action. As noted in
Chevron,
at para. 3:

In an action to recognize and
    enforce a foreign judgment where the foreign court validly assumed
    jurisdiction, there is no need to prove that a real and substantial connection
    exists between the enforcing forum and either the judgment debtor or the
    dispute. It makes little sense to compel such a connection when, owing to the
    nature of the action itself, it will frequently be lacking. Nor is it
    necessary, in order for the action to proceed, that the foreign debtor
    contemporaneously possess assets in the enforcing forum. Jurisdiction to
    recognize and enforce a foreign judgment within Ontario exists by virtue of the
    debtor being served on the basis of the outstanding debt resulting from the
    judgment.

[33]

The
    only prerequisite is that the foreign court had a real and substantial
    connection with the litigants or with the subject matter of the dispute,
    matters not in issue in this case:
Chevron
at para. 27. This relaxed
    threshold is justified in part because enforcement of a foreign judgment is
    generally limited to measures within the jurisdiction where the enforcement
    action is brought. An enforcing courts judgment generally has no coercive
    force outside that jurisdiction:
Chevron
, at para. 46. The substantive
    defences to an action to enforce a foreign judgment are limited, for example,
    fraud, denial of natural justice, or public policy:
Chevron
, at para.
    77.


[34]

The
REJA
provides a more convenient and expedited way to recognize and
    enforce judgments, but in these circumstances imposes a threshold requiring
    that the defendant have been carrying on business in the jurisdiction from
    which the judgment sought to be registered was obtained.

[35]

It
    is therefore unnecessary to consider whether the application judge was correct
    to conclude that registering a ricochet judgment would run counter to the
REJA
s

legislative objectives
.
I do not express agreement or
    disagreement with those conclusions but leave that question for another day,
    when it is necessary to dispose of an appeal.

D.

Disposition

[36]

On theses grounds, I would dismiss the appeal with costs to Antigua and
    Barbuda in the agreed sum of $17,500 partial indemnity, all inclusive.

G.
    Pardu J.A.



I
    agree Janet Simmons J.A.



Nordheimer J.A. (dissenting):

[37]

I
    have reviewed the reasons of my colleague. I do not agree with the conclusion
    that she reaches. In my view, the application judge erred in refusing to
    register the judgment under the
Reciprocal Enforcement of Judgments Act
,
    R.S.O. 1990, c. R.5 (
REJA
).

E.

Analysis

[38]

My
    colleague has set out the background facts along with the relevant legislative
    provisions so there is no need for me to repeat them.

(1)

Antigua and Barbuda Was Carrying on Business in British Columbia

[39]

The
    first issue is whether Antigua and Barbuda (Antigua) was carrying on business
    in British Columbia. I conclude that it was. The application judge made a
    palpable and overriding error in concluding otherwise. He did so, both on any
    common-sense view of the facts, and by applying a restrictive interpretation as
    to what constitutes carrying on business in the context of the principles
    underlying the reciprocal enforcement of foreign judgments.

[40]

My
    colleague says that the application judge did not err in summarizing or
    applying the legal test for what constitutes carrying on business: at para.
    28. I disagree. In interpreting and applying s. 3(b) of the
REJA
, the
    application judge erred in principle by failing to follow the clear direction
    of the Supreme Court of Canada enunciated in
Chevron Corp. v. Yaiguaje
,
    2015 SCC 42, [2015] 2 S.C.R. 69. Instead, he applied the principles from
Club
    Resorts Ltd. v. Van Breda
, 2012 SCC 17, [2012] 1 S.C.R. 572, which have no
    application in a case such as this where the judgment that the creditor seeks
    to enforce is itself a judgment issued for the enforcement of a foreign
    judgment. The decision in
Chevron
is clear that
Van Breda
does not apply to the recognition and enforcement of foreign judgments.
Van
    Breda
is a case about jurisdiction at first instance. As Gascon J. said,
    at para 41:

To accept Chevron's argument would
    be to extend
Van Breda
into an area in which it was not intended to
    apply, and in which it has no principled reason to meddle. In fact, and more
    compellingly, the principles that animate recognition and enforcement indicate
    that
Van Breda's
pronouncements should not apply to recognition and
    enforcement cases.

[41]

As
    Gascon J. pointed out in
Chevron
, courts must take a different
    approach to the question of jurisdiction when considering the enforcement of a
    foreign judgment as opposed to a claim of first instance based on events that
    occurred outside of Canada. As Gascon J. said at para. 27: Canadian courts,
    like many others, have adopted a generous and liberal approach to the
    recognition and enforcement of foreign judgments.

[42]

Consistent
    with this approach, in considering whether a party was carrying on business for
    the purpose of the
REJA
, and where the judgment to be registered is
    itself a judgment issued for the enforcement of a foreign judgment, that
    requirement should be interpreted in a fashion that establishes a very low bar.

[43]

In
    my view, the conduct of Antigua in British Columbia easily satisfies the
    requirement for carrying on business when a generous and liberal approach is
    taken to the determination of that factor. Antigua had hired companies to
    promote their Citizenship by Investment program (CIP). It is acknowledged
    that the purpose of the CIP was to generate monies for Antigua. Through the
    CIP, Antigua, in essence, sold citizenship in that country in exchange for the
    payment of significant sums by those desiring, for their own purposes, to
    obtain that citizenship. The evidence shows that Antigua received many millions
    of dollars through the CIP.

[44]

The
    application judge found that Antigua was not carrying on business in British
    Columbia because it did not have a physical presence in British Columbia and
    because it did not carry on any sustained business activity. The application
    judge erred in both of these respects. In order to carry on business for the
    purpose of the
REJA
, interpreted contextually in light of the facts of
    this case, one does not need a physical presence. Indeed, in this digital age,
    it is often unnecessary to have any physical presence in order to carry on a
    business.

[45]

The
    application judge found that Antigua did not have any sustained business
    activity in British Columbia That finding is a palpable and overriding error.
    The fact is that Antigua had promoted its CIP in British Columbia to citizens
    of that province for several years. There is no need for a specific length of
    time to have passed to determine whether someone is carrying on business. While
    admittedly a one-off transaction might not constitute carrying on business,
    neither is it necessary for transactions to be carried out for decades to
    constitute carrying on business in this context.

[46]

Further,
    the application judges reliance on the fact that the authorized
    representatives carried on their own businesses as justifying his conclusion
    that Antigua was not carrying on business through them, is entirely
    inconsistent with commercial reality. There are many businesses who act as
    agents for other companies, while maintaining their own business operations,
    and that does not change the fact that those companies carry on business
    through them.

[47]

Even
    if one accepts that the authorized representatives were not agents in the
    strict legal sense, as the appellant conceded, that does not change the fact
    that Antigua was carrying on business through them in British Columbia. Indeed,
    that would appear to be the sole reason why Antigua had authorized
    representatives in that province.

[48]

I
    note that the authorized representatives received a commission for each
    successful application that they directed to Antigua. I also note that the
    terms of the letters from Antigua appointing companies as authorized
    representatives use the following language to describe their role: [A]n
    approved Representative and Service Provider of the Citizenship by Investment
    Programme.

[49]

The
    fact remains that Antigua was promoting its CIP through these authorized
    representatives in British Columbia. It was promoting its product to the
    citizens of that province and encouraging citizens of that province to
    participate in it. In my view, that is sufficient to constitute carrying on business
    for the purposes of registering a judgment under the
REJA
that itself
    resulted from the enforcement of a foreign judgment in the reciprocating
    jurisdiction. I would add, on this point, that I would include within the
    ordinary meaning of the term carrying on business any government projects
    that have a commercial aspect. There is no reason to interpret that term in a
    fashion that would exempt governments from its application and thus render
    governments immune from the
REJA
.

[50]

I
    repeat that this analysis must be undertaken against the backdrop of what
    Gascon J. in
Chevron
described as an approach that favoured generous
    enforcement rules: at para. 42. The provisions of the
REJA
must be
    interpreted in a fashion that supports that approach. The application judges
    conclusion, as affirmed by my colleague, is not faithful to that approach.
    Indeed, the application judges conclusion permits Antigua to continue to avoid
    its financial obligations to the appellant, as determined by the Judicial
    Committee of the Privy Council (JCPC). On this point, I repeat the observation
    made by Gascon J. in
Chevron
, at para. 75:

Cross-border transactions and
    interactions continue to multiply. As they do, comity requires an increasing
    willingness on the part of courts to recognize the acts of other states.

(2)

The Original Judgment was Granted in British Columbia

[51]

As
    a result of my conclusion, I must address the second issue and that is the
    meaning of original judgment in s. 3(g) of the
REJA
. In my view, that
    term clearly refers to the judgment that was granted in British Columbia. To
    conclude otherwise would yield a result where the word original is given a
    different meaning in s. 3(g) than it clearly bears in the definition section of
    the legislation. In s. 1(1) original court is defined as the court by which
    the judgment was given. There can be no dispute that, in this case, judgment
    means the British Columbia judgment since it is that judgment that is sought to
    be registered. Therefore, the original court is the British Columbia court.

[52]

If
    the application judges interpretation of s. 3(g) is correct, the term
    original judgment would mean something different than the term original
    court. The application judge would have the former term refer to the JCPC
    judgment and the latter term refer to the British Columbia court. There is no
    rational basis for interpreting the two terms in that manner or for having the
    same word in the same statute mean two entirely different things. The
    legislator is presumed to express itself with consistency, such that the same
    word is presumed to have the same meaning throughout a statute:
R. v.
    Zeolkowski
, [1989] 1 S.C.R. 1378, at p. 1387.

[53]

Here,
    there is nothing that warrants overturning this presumption. The application
    judge erred by interpreting original judgment so as to distinguish between
    different types of judgments made by the reciprocating jurisdiction, a
    distinction that the legislator did not make. His interpretation undermines the
    purpose of the
REJA
, which is to facilitate the enforcement of
    judgments properly issued by reciprocating jurisdictions.

[54]

Since
    the original judgment, in this context, means the British Columbia judgment,
    Antigua did not have a good, or indeed any, defence to that action. It does not
    suggest that it did. That is not surprising given that the British Columbia
    judgment sought to enforce the obligation that fell on Antigua when the JCPC
    issued its judgment, having found Antiguas defence to the underlying claim
    brought against it to be wanting.

F.

Conclusion

[55]

I
    would allow the appeal and order that the British Columbia judgment be
    registered.

[56]

I
    would award the appellant its costs of the appeal in the agreed amount of
    $40,000 inclusive of disbursements and HST.

Released: January 9, 2020

GP

I.V.B. Nordheimer J.A.


