



COURT OF APPEAL FOR ONTARIO

CITATION: Bennett Estate v. Iran (Islamic Republic of), 2013
    ONCA 623

DATE: 20131011

DOCKET: C57715

Hoy A.C.J.O., Laskin and Tulloch JJ.A.

BETWEEN

Estate of Marla Bennett, Michael Bennett, Linda
    Bennett and Lisa Bennett

Plaintiffs (Respondents)

and

Islamic Republic of Iran and Iranian Ministry of
    Information and Security

Defendants

and

Attorney General of
    Canada

Intervener (Respondent)

and

Sherri Wise

Proposed Intervener (Appellant)

Mark J. Freiman and Domenico Magisano, proposed
    intervener (appellant)

John Adair, for the plaintiffs (respondents)

Heard:  October 10, 2013

On appeal from the order of Justice D.M. Brown of the Superior
    Court of Justice, dated September 30, 2013.

By the Court:

[1]

The appellant, Dr. Sherri Wise, appeals the motion judges dismissal of
    her motion pursuant to Rule 13.01(1)  for leave to intervene as an added party
    in an action to recognize a foreign judgment pursuant to s. 4(4) of the
Justice
    for Victims of Terrorism Act
, S.C. 201, c. 1, s. 2 (the 
JVTA
).

The Background

[2]

The background, briefly, is as follows.

[3]

The appellant is a Canadian citizen and the victim of a 1997 terrorist
    bombing in Israel. In 2012, the
JVTA
was enacted, allowing victims of
    terrorism to sue perpetrators of terrorism and their supporters, and the
    appellant commenced an action in British Columbia against the Islamic Republic
    of Iran and the Iranian Ministry of Information and Security (MOIS) for the
    damages that she sustained in that terrorist bombing.

[4]

The respondents are American citizens and obtained a significant
    judgment in the United States in 2007 against Iran and MOIS under American
    legislation permitting its citizens to recover damages for state-sponsored
    terrorist attacks for damages suffered as a result of a different terrorist
    attack. The American legislation was enacted before the
JVTA
:  the
    respondents were in a position to secure a judgment before the appellant.

[5]

The appellant learned that the respondents were seeking to have their American
    judgment recognized in Canada pursuant to s. 4(5) of the
JVTA
. Neither
    Iran nor the MOIS defended the respondents action for recognition of their
    American judgment, and have been noted in default.  The Attorney General of
    Canada was, however, granted intervener status on consent.

[6]

The appellant fears that the American judgment is so significant that if
    recognized and enforced against Irans assets in  Canada no funds will remain
    to satisfy her judgment, or the judgments of other Canadians, and the
JVTA
will not provide what she submits is the intended, meaningful remedy for
    Canadian victims of terrorism sponsored by Iran. At the outset of the September
    30, 2013 hearing of the respondents motion to recognize their American
    judgment, she accordingly sought leave to intervene as a party on, and an
    adjournment of, the respondents motion.  She seeks to make an argument not
    advanced by the Attorney General, namely that, properly interpreted, the
JVTA
does not suspend the limitation period normally applicable to an action to
    recognize a foreign judgment and the respondents action to enforce their
    American judgment is accordingly statute-barred.

[7]

The motion judge dismissed her motion, with reasons to follow, and
    proceeded to hear the motion to recognize the American judgment. The motion
    judge ordered that the hearing of that motion continue on October 31, 2013 on
    two discrete issues, with the parties to file factums on those issues by
    October 25, 2013.

[8]

In his reasons for dismissing the appellants motion, released on
    October 1, 2013, he determined that the appellant had not met any of the three
    criteria enumerated in Rule 13.01(1). He wrote further, as follows:

Although I have directed that the motion continue on October
    31, 2013 to hear further submissions on two discrete issues, most issues raised
    by the motion already have been canvassed in the written and oral submissions.
    With the greatest respect to Dr. Wise and her counsel, I do not see what value
    added she could have brought to the hearing. Accordingly, her lack of any
    legal interest in the issues raised by the [American action], when coupled with
    the lack of assistance she could give to the Court, made any further delay of
    the hearing of this motion unacceptable.

The Parties Positions

[9]

The appellant argues that the motion judge erred in concluding that: the
    appellant had not met any of the criteria enumerated in Rule 13. 01(1);
    granting the appellant intervener status would result in further delay; and the
    appellant would not make a useful contribution to the hearing. If this appeal
    is allowed, the appellant would file a factum by the October 25, 2013 date
    applicable to the parties, addressing principally the limitation period issue,
    and not seek to alter the October 31, 2013 date set for the continuation of the
    motion, or supplement the record before the motion judge.

[10]

The
    respondents argue that the motion judge correctly concluded that the appellant
    did not satisfy any of the criteria in Rule 13.01(1), and that, in any event,
    his conclusion that the appellant would not make a useful contribution to the
    resolution of the motion is entitled to deference. Moreover, the respondents
    submit that the argument that the appellants seek to advance would inevitably
    require the respondents to file further evidence about the extent of Irans
    assets in Canada and lead to further delay.

Analysis and Conclusion

[11]

In
    our view, the motion judge mischaracterized the nature of the respondents
    interest, and as a result erred in concluding that the appellant did not
    satisfy any of the criteria in Rule 13. 01(1).

[12]

In
    concluding that the appellant had not demonstrated that she had an interest in
    the subject matter of the proceeding, within the meaning of s. 13.01(1)(a),
    the motion judge wrote:

Counsel was not able to take me to any case law in which a
    plaintiff who had not yet obtained judgment was considered to possess a
    sufficient interest to enable it to intervene in enforcement proceedings
    already underway by an existing judgment creditor of a debtor.

[13]

Similarly,
    in concluding that the appellant had not established that she may be adversely
    affected by a judgment in the proceeding, within the meaning of s.
    13.01(1)(b),  the motion judge commented that counsel had not taken him to any
    case law which would require an unsecured judgement creditor to put its
    enforcement proceedings in abeyance in order to allow a contingent claimant to
    catch up

[14]

With
    respect, until such time as the respondents succeed in having their American
    judgment recognized in Canada, they are not judgment creditors in Canada. 
    Their interest is more akin to the contingent interest of the appellant.
    Moreover, the appellant does not seek a stay of the respondents action.

[15]

A
    person only needs to satisfy one of the criteria in Rule 13.01(1) in order to
    be able to move for leave to intervene.  In our view, the appellant satisfied
    two.  She both has a contingent interest in the subject matter of the
    proceeding (s. 13.01(1)(a)) and
may
be adversely affected by a judgment
    recognizing the American judgment (s. 13.01(1)(b)).   The appellant provided
    evidence from the Canadian government suggesting that Irans assets in Canada
    may not be sufficient to satisfy any judgment other than the respondents.

[16]

As
    the respondents argue, if one of the criteria in Rule 13.01(1) entitling a
    person who is not a party to a proceeding to intervene as an added party is
    made out, the motion judge then has the discretion to grant intervener status,
    and the motion judges decision to deny intervener status is entitled to
    deference. In
Peel (Regional Municipality) v. Great Atlantic & Pacific
    Co. of Canada Ltd.
74 O.R. (2d) 164 (C.A.), at para. 10, Dubin C.J.O.
    indicated that the nature of the case, the issues which arise and likelihood
    of the applicant being able to make a useful contribution to the resolution of
    the appeal without causing injustice to the immediate parties are
    considerations in determining whether intervener status should be granted. 
    Respectfully, in this instance, deference is displaced because the motion judge
    mischaracterized the nature of the case as a private commercial one between a
    judgment creditor and a contingent creditor. In this case, important public
    issues are at play.

[17]

We
    do not agree that the respondents will not make a useful contribution to the
    resolution of the motion before the motion judge for recognition of the
    American judgment. The
JVTA
is new legislation, enacted with the
    important public objective of impairing the functioning of terrorist groups. 
    Its interpretation is a matter of first instance. No other party seeks to make
    the arguments that the appellant advances, especially the limitation period
    argument. If the appellant is not granted intervener status, either those
    arguments will not be made, or, if considered and disposed of by the motion
    judge on his own initiative, there will be no avenue of appeal if the motion
    judge determination that the American judgment should be recognized.

[18]

We
    are not persuaded that the limitation or public policy arguments that the
    appellant seeks to advance will necessitate the filing of further evidence by
    the respondent and result in further delay.

[19]

Accordingly,
    this appeal is allowed. The appellant shall be entitled to file a factum, not
    exceeding 20 pages. Her factum shall be filed by October 25, 2013. The time
    allocated to counsel for the appellant for argument on October 30, 2013 shall
    be as determined by the motion judge.

[20]

If
    the parties are unable to agree on the issue of costs, they shall be entitled
    to make brief written submissions.

RELEASED: AH  OCT 11 2013

Alexandra Hoy
    A.C.J.O.

John Laskin J.A.

Michael Tulloch J.A.


