Living In Splendid Isolation - Lessons Learned Enforcing an Ontario Judgment in Mexico

Living in Splendid Isolation:  Ten Lessons Learned
Enforcing an Ontario Judgment in Mexico  

Blair Bowen
Fogler, Rubinoff LLP, Toronto

Introduction

This article presents a cautionary tale for any person who wishes to take legal proceedings against an individual or company resident in Mexico.

More than 25 years ago, the Supreme Court of Canada's decision in Morguard Investments Ltd. v. De Savoye[1], represented a sea change in the way Canadian courts recognized and enforced foreign judgments.  The "foreign" aspect of Morguard involved British Columbia plaintiffs seeking to enforce an Alberta judgment.  Writing for the court, Justice La Forest rejected the centuries' old principles regarding recognizing and enforcing foreign judgments which were anchored in the concept of territoriality.  He held that modern states like Canada should no longer live in "splendid isolation" from the rest of the world and should give effect to judgments made in other countries.  In arriving at its conclusion, the court relied heavily upon the concept of comity which had been adopted by the Supreme Court of the United States.  It held that comity would "impel sovereigns to mutual intercourse". 

These lofty ideals were written just four years before commerce between Canada and Mexico was facilitated by the North American Free Trade Agreement ("NAFTA").  NAFTA sought to reduce, and in some instances, eliminate barriers to trade and commerce between Canada, Mexico and the United States.  Indeed, after NAFTA, trade between Canada and Mexico increased substantially and Mexico is now one of Canada's largest business partners and export destinations.

More recently however, a case in which I was involved, drove home the very unsettling point that the Supreme Court's vision of greater ease in enforcing foreign judgments between trading partners has not been fully embraced by Mexico.  You will learn from reading this offering that Mexico and its judicial system still exist in a state of "splendid isolation" when it comes to recognizing and enforcing judgments from Canada. 

A "Garden Variety" Breach Of Contract Case

Several years ago, I was retained by an Ontario company to sue defendants who resided in Mexico[2].  The client was a producer of live entertainment and theatre and was owed a substantial sum of money as a result of a failed business deal with a Mexican promoter.  The Mexican promoter had persuaded our client to allow a touring dance company to deliver several performances in Mexican venues, without first paying our client for the performances or without providing adequate security for payment.  After several broken promises, our client soon determined that the promoter had no intention of honouring his contractual obligations. 

At first review, this seemed like a straight-forward "garden variety" breach of contract case, the only wrinkle being the non-resident defendants.  After receiving no response to its demands for payment, the client needed to make a decision.  Should it sue the Mexican promoter in Mexico or in Ontario?  The client's Mexican lawyers advised that so long as an Ontario court would take jurisdiction over the Mexican promoter and the other proposed defendants – the promoter's wife and his "theatre arts" company, a Mexican court would recognize and enforce a judgment obtained from the proceedings.  This advice seemed promising and we commenced the action in the Ontario Superior Court of Justice. 

Lesson Number 1 

Before commencing proceedings in Ontario against Mexican defendants, obtain advice from Mexican lawyers describing in detail the process involved for recognizing and enforcing an Ontario judgment in Mexico and the defences that may be raised by Mexican defendants in resisting recognition and enforcement.

Doing Justice Formally

The defendants could be served with the statement of claim outside of Ontario without a court order because Ontario had jurisdiction simpliciter.  A substantial connection existed between Ontario and the cause of action for many reasons:  the contract was made in Ontario;  a breach of the contract had been committed in Ontario;  damage was sustained by our client in Ontario arising out of the defendants' breach of contract; and, the contract provided that the courts of Ontario had jurisdiction to resolve a dispute arising out of the contract. 

Canada and Mexico are both signatories to the Hague Convention on the service abroad of judicial and extra-judicial documents in civil or commercial matters (the "Convention").  Normally, we would be able to serve the statement of claim on the Mexican defendants by any means legally provided for service of an originating document in Mexico.  However, the client's Mexican lawyers warned that when Mexico ratified the Convention, it opposed the use of the simplest methods of serving a foreign statement of claim.  Instead, it had designated a branch of its Foreign Ministry as the only competent authority to receive originating documents from another country.  

Lesson Number 2

Mexican courts require foreign court and other inbound documents to be certified or authenticated.  This generally means having all documents originally signed by the issuing authority, i.e. judge, clerk or other authority, and attesting that the documents are true and correct copies of the originals. 

Mexico, as we were just beginning to learn, is a jurisdiction that does justice very formally.  We learned that Mexican courts required formalistic procedures for often the simplest administrative steps.  At the advice of the Mexican lawyers, we followed a multi-step process to ensure that service of the statement of claim was properly effected on the Mexican defendants.  Such steps included translating our request for service and the statement of claim into Spanish, providing the Mexican lawyers with a power of attorney from our client which needed to be notarized by us and then "legalized" at the Canadian consulate in Mexico City and then transmitting all documents in duplicate to the Mexican Foreign Ministry. 

Lesson Number 3

Once authenticated, Mexican courts require that all inbound documents be "legalized".  The process of legalization can be done by obtaining another document from the Mexican Consulate in Ontario called an "apostille" which will be attached to the documents in question.  The apostille gives Ontario documents full binding effect in Mexico.    

The Mexican lawyers told us that we needed the Mexican Consulate in Toronto to apply a "legalization" stamp on the documents.  We were also told that since our client was a foreign company, it would have to submit an original certificate of status showing it was in good standing, its articles of incorporation, an original copy of the company's by-laws and articles which included the powers vested in the board of directors authorizing the lawsuit, an original copy of the minutes of the relevant meeting of the board with the full names of all the directors and their official titles, an original copy of the minutes of the meeting of the board respecting the election of the present board of directors, an original copy of the minutes of the meeting of the board where it was resolved to confer the power of attorney. 

All of this was necessary to serve the statement of claim on the defendants.  

Lesson Number 4

Utilize the services of Global Affairs Canada where possible.  Global Affairs Canada is the federal government agency that manages Canada's diplomatic and consular relations.  It offers to authenticate a variety of documents so that they will be accepted for use abroad. 

We had two options available to us, (1) the client could present the notarized power of attorney to Global Affairs Canada.  We needed Global Affairs Canada to apply an authentication stamp on the documents and then submit it to the Mexican Consulate to be legalized; or (2) the client's president could attend at the Mexican Consulate in Toronto to execute a power of attorney according to Mexican law.  If he chose this option, he would have to present all of the corporate documents referred to above.  Needless to say, we chose the former option. 

The Mexican lawyers also advised that in addition to serving the statement of claim, it was customary to serve the plaintiff's certificate of status, articles of amendment, if any, and the power of attorney.  While the defendants would not require those documents in order to file a defence, we were advised that to be on the safe side and to avoid the possibility of a technical defence being raised, we should serve all of such documents with the statement of claim.

Having received that advice, we completed a request for service pursuant to the Convention together with a notice summarizing the nature of the documents that were to be served on the defendants.  Since Mexico had objected to "other means of service" under the Convention, we needed to deliver the documents to Mexico using the Central Authority for Canada in Haileybury, Ontario ("Haileybury"). 

Haileybury sent the documents to the client's Mexican lawyers.  The lawyers told us that the documents were "acceptable in principle" but were missing an official stamp and signature of the Canadian "requesting authority".  It was essential to the Mexican Foreign Ministry that Haileybury officially stamp the documents so that it could process our request for service in Mexico.  The Mexican lawyers sent the documents back to Haileybury.  Haileybury stamped the documents and sent them back to the Mexican lawyers who then attempted to file the documents for service with the Mexican Foreign Ministry. 

Lesson Number 5

Ensure that all documents are translated by a certified translator.  According to Mexico's Federal Code of Civil Procedure ("FCCP"), all documents pertaining to an action in Mexico must be translated into Spanish.  I recommend that the translation work is performed by a certified translator appointed by the court where you intend to enforce the judgment and that such work is monitored by legal counsel in Mexico.

After a month of waiting, we were informed that the Foreign Ministry had again returned the documents to the Mexican lawyers because of "technical deficiencies".  The issue appeared to be that the Mexican court wanted an Ontario court to sign the request for service of the documents.  Upon attendance at the registrar's office, our law clerk was informed by the Registrar of the Superior Court that he would not sign such a request.  Haileybury also advised that they would not sign the request.  However, after some persuasion by our law clerk, the Registrar relented and signed the request for service.  To make them look more formal and official, our law clerk put a red paper seal on the documents. 

Lesson Number 6

Follow all instructions from Mexican courts completely, even the instructions that appear to be arbitrary.

We intended to send the documents back to Haileybury for re-stamping.  Before doing so, we noticed that the documents that had been returned from Mexico included new instructions in Spanish.  The Mexican court was now requesting two sets of originally signed documents instead of one.  We were told by the Mexican lawyers that the request for duplicate originals was new and was a criterion of an individual officer at the Foreign Ministry.  It was not a requirement under the Convention or a requirement of Mexican law.  It was simply a requirement of the person dealing with the matter in Mexico.  We were told that we would have to comply with the request in order to have the documents accepted. 

Once we had sent the duplicate documents back to Mexico via Haileybury, the Mexican lawyers told us that the Foreign Ministry still refused to accept them because the preamble in the statement of claim did not specify whether the days required to respond to the claim were calendar days or business days.  The Foreign Ministry wanted the Ontario Court to issue a "resolution" to confirm that the days referred to in the preamble were calendar days.  Just as we were attempting to determine how we could obtain such a resolution from the Ontario Court, we were surprised by the Mexican lawyers who told us that the Foreign Ministry had relented.  The Mexican lawyers had met with the Director of the Foreign Ministry and persuaded her that she did not require the Ontario court to explain its preprinted form by resolution after all.  Apparently they felt they had tormented us long enough. 

Several months after we were first retained, two of the three defendants (the promoter and his company) were finally served with the statement of claim.  Service on the third defendant (the promoter's wife) was pending because the judge that received the request asked for extra copies of the documents even though the Convention did not require that these extra copies be provided. 

No Cakewalk In Ontario Either

The Mexican defendants subsequently attorned to the jurisdiction of the Ontario Court and defended the action.  We hoped that the action would now proceed expeditiously.  We were naive. 

It quickly became apparent that the Mexican defendants would not willingly participate in the action or take any step towards furthering or resolving the proceeding unless ordered to do so by the court.  As a result, we were required to initiate or threaten a number of useless interlocutory motions for, among other things, (a) requiring the defendants to deliver their affidavits of documents; (b) requiring the defendants to attend for discovery (in the end, it was much quicker and cost-effective to examine the defendants in Mexico City rather than to pay for the cost of their attendance in Ontario and wait for travel visas to be issued).  At the time, Citizenship and Immigration Canada had just imposed a travel visa requirement on all Mexican nationals; (c) requiring the defendants to deliver answers to the undertakings given on their examinations for discovery; and (d) exempting the action from mediation. 

Settling (Apparently) On The Eve Of Trial

We set the matter down for trial and obtained a trial date.  On the eve of trial, we heard from the trial coordinator in Toronto.  Her office had overbooked trials and that there were no judges available to hear our trial.  We were on standby until Wednesday of the trial week.  Faced with having to actually purchase plane tickets to come to Toronto for the trial, the defendants became serious in their settlement negotiations.  The trial coordinator further delayed the start of the trial advising that the  matter would need to be put over from spring to the fall of that year.  Our client, wanting to end the matter instructed us to accept the last offer to settle that the defendants had served. 

Once the action had been settled, it became abundantly clear that the Mexican defendants had no intention of paying any part of the settlement amount, just as they had originally no intention of paying my client the amount owed under the contract.  The opposing lawyer attempted to reassure me that my client's rights were protected because the terms of the settlement which provided that my client could obtain consent judgment for a much higher amount if the defendants defaulted in paying any part of the settlement.  Eventually communication with the other lawyer ceased.  We were required to bring a motion to enforce the terms of the settlement. 

Appealing From An Unopposed Judgment

We scheduled a motion for judgment based on the accepted offer to settle, which the Mexican defendants did not oppose.   

Three weeks later, the defendants' lawyers served their clients' notice of appeal from the unopposed judgment.  Because the defendants had not opposed the motion for judgment, it was beyond me as to what their grounds for appeal might be. 

We received a notice of change of lawyer in the appeal proceedings.  However, just before the holiday season that year, the new lawyers for the defendants served a notice abandoning the appeal.

Once the appeal had been abandoned we set about, again, speaking with Mexican lawyers to understand the procedure involved in having the judgment recognized and enforced against the defendants in Mexico.  As we were in the midst of doing so, we were contacted by a third Ontario law firm advising that they had been retained by the defendants to bring a motion to set aside or vary the judgment on the grounds that it had been obtained by mistake. 

Not surprisingly, our client was losing its resolve.  The defendants had put up numerous road blocks to prevent our client from seeing a penny of the amount it was owed.  Our client was willing to substantially compromise its judgment in order to move on with its business.  We began negotiating settlement with this third firm of lawyers.  But in the end, the defendants' threat to move to amend or vary the judgment simply faded away. 

Enforcing The Judgment – Part 1 – Obtaining "Novel" Letters Of Request

The client's Mexican lawyers told us something that had become obvious – the Mexican legal system was very formalistic and rigid in its requirements, particularly when it dealt with any parties or procedures outside of Mexico.

Homologación

The process involved for recognizing and enforcing a foreign judgment in Mexico is called "homologación".  It is a procedure that involves both local and federal rules of procedure.  This happens within a Mexican civil law system that relies heavily on strict and full compliance with all formalities.  We were told at this late stage that it would have been wise to have considered all requirements and formalities for homologación before we commenced the proceedings in Ontario to make sure that all requirements and formalities would be strictly complied with.  (See Lesson 1)

Lesson Number 7

Obtain letters of request in Ontario which ask the Mexican court to recognize and enforce the judgment.  The letters of request should stress the principle of comity.  Under the FCCP Mexican courts will not enforce a foreign judgment if it is proven that the issuing court would not enforce a Mexican judgment under similar circumstances.  It is advisable that all letters of request include a short statement acknowledging that "under similar circumstances, this court would recognize and enforce a judgment coming from the requested court".

The first such formality was that we were required to obtain from the Ontario court, a letter of request, signed by both a judge and the registrar of the Ontario court asking the Mexican court to recognize and enforce the judgment. 

We could find only one Canadian case in British Columbia, First Majestic Silver Corp.[3], in which such a request had been granted.  The plaintiff in that case was seeking to enforce a British Columbia judgment, in you guessed it, Mexico.  In that case, the court held that Canada's Superior Courts possess an inherent jurisdiction to request international judicial assistance to enforce a domestic judgment.  The case also suggested that the Mexican court's requirement that the Ontario court must request its assistance before it will take steps to recognize and enforce the judgment could be fulfilled on the basis of comity.  Under the common law, Ontario regularly enforced judgments from Mexico by way of an action on the judgment.  The principles of "comity, order and fairness" dictated an expectation that judgments of Ontario would be recognized and enforced by the Mexican courts. 

I made a motion before a judge of the Superior Court of Justice and asked her to sign letters of request that I had drafted.  She refused to do so.  The judge told me that she had never signed such a document and indicated that she would "feel better" if we obtained an affidavit from a Mexican lawyer setting out the requirements of the Mexican court.  Accordingly, we drafted a short affidavit for our client's Mexican lawyer to sign and went back to court. 

My second court appearance took place on the Friday before the Victoria Day holiday long weekend.  I attended before another judge of the Ontario Superior Court of Justice.  Our motion was unopposed.  Having read my factum, the judge advised at the opening of court that he would hear my matter last.  Late in the afternoon, after all of the other motions had been dealt with, the judge told me that he did not oppose, in principle, the relief that I was seeking but had some difficulties with the language of the draft letter of request that gave the Mexican court the power to, among other things, fine and arrest the judgment debtors.  He told me that he would be "more comfortable" with language that reflected the enforcement powers contained in Ontario's Rules of Civil Procedure.  He asked me to revise the draft letter of request and email it to him for approval before I appeared before him again.  Approximately one week later, after appearing before the judge in chambers, and explaining the changes made to the draft letter, I received the signed order and letter of request.  This I considered to be a small victory.

Enforcing The Judgment In Mexico – Part 2 – Doing Justice Very Formally

The Mexican lawyers intended to take the letters of request to the Mexican court to initiate proceedings to enforce the Ontario judgment.  In order to do so, we needed to send them an original or certified copy of the contract on which the action was based, an original or certified copy of the judgment, the letter of request and a power of attorney from our clients.  We also were advised that all documents should be authenticated, translated into Spanish, and legalized by the Mexican consulate in Toronto and then sent to them in Mexico City. 

We then sent the notarial copies of the documents to Global Affairs Canada and asked them to authenticate them.  We received the authenticated documents back from Global Affairs Canada within a couple of weeks.  We then sent all documents to the Mexican lawyers for the necessary translation and submission to the court in Mexico.

The Mexican lawyers arranged to have the document translated into Spanish.  In addition, they made inquiries of the Office of Public Records in Mexico City to ascertain the status of the real properties owned by the defendants.  Once they had done so, and received the translated documents they were ready to file.  By that time, the courts in Mexico were on the November 1^st "Dia de Muertos" (day of the dead) break and nothing was functioning.  

The Mexican court acknowledged receipt of the client's documents in or about the middle of November.  The next step would be to serve the judgment debtors.  We were advised the service might take a few days to a week after which the defendants would have 9 working days to present evidence, pleas and arguments as to why the judgment should not be recognized and enforced in Mexico.  The Mexican lawyers advised that the main defence to recognizing and enforcing a foreign judgment was to argue that the judgment was not final but Mexican judgment debtors would use every available defence to avoid execution on the judgment as a delay tactic. 

Lesson Number 8

Ensure that letters of request include a statement that the judgment is final and res judicata.  The FCCP requires that the judgment to be enforced is final and res judicata in the sense that there is no legal recourse pending or available to the defendant in Ontario.  It is advisable that a statement to that effect is contained in the letters of request.

After a few weeks of waiting, the Mexican lawyers advised that the defendants had not yet delivered a defence because they had not been notified of the judgment.  Apparently the judge who was reviewing the documents could not determine whether the judgment emanated from an action involving real property or a personal action involving a payment of money.  The Mexican lawyers also advised "surprisingly and absurdly, the judge also requests us to demonstrate that the judgment presented before him is firm and res judicata".  They advised that they were appealing this decision because the letters of request clearly stated the judgment was res judicata. 

The matter was then presented to an appeal judge of the Mexican court who advised that he had to study and analyze the matter before issuing a ruling.  The Mexican lawyer advised us, "please let me remind you that Mexican justice is not swift at all, quite the opposite".  He advised that the matter would not be wrapped up before the end of the year and then the courts would be on their year-end break for the holidays and the new year. 

Lesson Number 9

Ensure that the letter of request specifies that the judgment was a result of an action in personam and not an action in rem.  

By the end of January, the client's Mexican lawyers had still not heard from the appeals judge.  Finally, at the end of February, we received an answer but it was not one that we expected or desired.  The judge who had reviewed the materials, ruled that he could not accept the claim because the materials had not demonstrated that the Ontario judgment was final and the materials that were submitted to him did not show that they were in respect of personal rights rather than rights in rem.  When the client's Mexican lawyers submitted the appeal, they argued that the letters rogatory stated quite clearly that the judgment was final and was in respect of a contract between parties as opposed to real property situated in Ontario. 

The appeal judge upheld the ruling of the lower court and added that all documents would have to be sent back to Toronto to be "legalized" by the Mexican consulate. 

Lesson Number 10

Be patient.  This is perhaps the most important lesson.

The Mexican lawyers apologized to us saying that the delay was due to circumstances beyond their control and as a result of the "peculiar ways" of the Mexican judicial system.  They presented two options:

1.               To appeal to an even higher court in Mexico and ask for both decisions to be overturned.  That outcome was uncertain and could take a few months with no guarantee of it going our client's way; or

2.               To file the documents afresh.  The Mexican lawyers indicated that that was the best way to proceed.  The client agreed.

Accordingly, we sent the original contract between our client and the Mexican promoter to the Mexican lawyers to translate into Spanish to present to the judge to show that the judgment originated from an action in personam  as opposed to an action in rem.  In addition, the Mexican lawyers sent back all of the original documents that they had presented to the Mexican court so that we could take them to the Mexican consulate in Toronto to have them legalized.  (See Lesson 3)

Once the documents had been duly stamped by the Mexican Consulate, we sent them back to the Mexican lawyers.  The defendants presented the documents to the Mexican judge.  This time, the judge could not determine whether the judgment had emanated from a civil action or an arbitration, thus necessitating an appearance before him of the Mexican lawyers to explain.  Finally, at the end of August, the Mexican lawyers advised that the Mexican defendants had been served with the enforcement documents.  That gave them 9 working days to file their answer with the court.  A month later, when updating us as to the status of the proceeding, the Mexican lawyer commented, "as you might be aware by now, legal proceedings in Mexico tend to be slow and complicated".  He then advised that they had been first informed unofficially and then officially, that the judge in charge of the case had declined jurisdiction on the grounds that the case was the matter of a local court and not of a federal court.  Accordingly, he intended to send our client's file to a local court, i.e. with jurisdiction in Mexico City only.  The Mexican lawyers advised that they strongly disagreed with that view and were already preparing an appeal to keep the matter in Mexican Federal Court. 

The Mexican lawyers scheduled an appeal before a judge of the Federal Court.  On the date of the appointment, they were told the judge was not available.  As a result, they left their written argument with the judge's administrative assistant.  They were advised that the matter would go to "study and resolution" but they were not advised how long it would take.

Recently a Mexican appeal court ruled that our client's enforcement proceedings should be dealt with by the local court in Mexico City rather than by the Mexican Federal Court.  Although the client's Mexican lawyers disagreed with the ruling, in order to save time and expense, they conceded that the matter should be dealt with locally.  It was now a matter for the Federal Court to transfer the complete file to the Mexico City court, which, we were told, would take some time.

Summary Of Lessons Learned

Lesson Number 1 - Before commencing proceedings in Ontario against Mexican defendants, obtain advice from Mexican lawyers describing in detail the process involved for recognizing and enforcing an Ontario judgment in Mexico and the defences that may be raised by Mexican defendants in resisting recognition and enforcement.

Lesson Number 2 - Mexican courts require foreign court and other inbound documents to be certified or authenticated.  This generally means having all documents originally signed by the issuing authority, i.e. judge, clerk or other authority, and certifying or attesting that the documents are true and correct copies of the originals. 

Lesson Number 3 - Once authenticated, Mexican courts require that all inbound documents be "legalized".  The process of legalization can be done by obtaining another document from the Mexican Consulate in Ontario called an "apostille" which will be attached to the documents in question.  The apostille gives Ontario documents full binding effect in Mexico.    

Lesson Number 4 - Utilize the services of Global Affairs Canada where possible.  Global Affairs Canada is the federal government agency that manages Canada's diplomatic and consular relations.  It offers to authenticate a variety of documents so that they will be accepted for use abroad. 

Lesson Number 5 - Ensure that all documents are translated by a certified translator.  According to Mexico's Federal Code of Civil Procedure ("FCCP"), all documents pertaining to an action in Mexico must be translated into Spanish.  I recommend that the translation work is performed by a certified translator appointed by the court where you intend to enforce the judgment and that such work is monitored by legal counsel in Mexico.

Lesson Number 6 - Follow all instructions from Mexican courts completely, even the instructions that appear to be arbitrary.

Lesson Number 7 - Obtain letters of request in Ontario which ask the Mexican court to recognize and enforce the judgment.  The letters of request should stress the principle of comity.  Under the FCCP Mexican courts will not enforce a foreign judgment if it is proven that the issuing court would not enforce a Mexican judgment under similar circumstances.  It is advisable that all letters of request include a short statement acknowledging that "under similar circumstances, this court would recognize and enforce a judgment coming from the requested court".

Lesson Number 8 - Ensure that letters of request include a statement that the judgment is final and res judicata.  The FCCP requires that the judgment to be enforced is final and res judicata in the sense that there is no legal recourse pending or available to the defendant in Ontario.  It is advisable that a statement to that effect is contained in the letters of request.

Lesson Number 9 - Ensure that the letter of request specifies that the judgment was a result of an action in personam and not an action in rem.  

Lesson Number 10 - Be patient.  This is perhaps the most important lesson.

Blair Bowen
Fogler, Rubinoff LLP, Toronto
bbowen@foglers.com

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[1] [1990] 3 SCR 1077

[2] This saga began in 2008. It is not yet complete.

[3] 2015 BCSC1517

Appeal Court Finds Judicial Bias on Jurisdiction Motion

In a recently released decision, the Ontario Court of Appeal found that a motion judge’s actions on a jurisdiction motion gave rise to a reasonable apprehension of bias.  As a result, the Court of Appeal set aside the order made at the motion and ordered that the jurisdiction motion be heard again before a different judge of the Ontario Superior Court.  The full decision is report at Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60.

 

In the action, various plaintiffs, including plaintiffs in Ontario, sued four foreign defendants for breach of franchise agreements.  The defendants brought a motion to dismiss the action arguing that the Ontario court lacked jurisdiction.  In the alternative, they asked the court to stay the action on the basis of forum non conveniens.  The motion was heard before Justice David Corbett of the Ontario Superior Court of Justice.  Justice Corbett dismissed the motion.  He found that there was jurisdiction simpliciter in Ontario for all claims, including for those claims that had arisen in other Canadian provinces.  He also held that Ontario was the most convenient forum in which a single proceeding would be held. 

 

The defendants appealed from Justice Corbett’s findings relating to jurisdiction simpliciter and forum non conveniens.  However, they also raised, as a ground of appeal, that Justice Corbett’s comments and conduct during the course of the motion raised a reasonable apprehension of bias.  The Court of Appeal agreed with this latter submission.

 

There were two hearings before Justice Corbett.  At the first hearing, the foreign defendants objected to the affidavit evidence filed by the plaintiffs’ sole affiant on the basis that it was extensively based on information without identifying the source of the information and setting out why the affiant believed the information to be true.  Justice Corbett agreed that the evidence presented by the plaintiffs "would be fatal" to their position on the motion.  He therefore adjourned the motion on his own initiative and ordered the plaintiffs to cure the defective affidavit by serving a further affidavit. 

 

After cross-examinations were held, the parties returned before Justice Corbett to argue the motion.  Prior to the lunch breach and before hearing argument on joinder and forum non conveniens issues, Justice Corbett rendered his decision dismissing the motion and referring to it as “an abuse of process”. 

 

Justice Corbett advised counsel that he would be delivering further reasons “for the purposes of any appeal of this decision”.   In his amended endorsement, Justice Corbett dealt with the issues of jurisdiction and joinder presented on the motion.  He concluded the endorsement with a section entitled “Process of this Motion” which he identified as necessary because the motion was “bad” and called for a sterner response.   In the section he criticized the defendants for the amount of time they took to prepare their materials for the initial hearing, and described their objection to the respondents’ evidence as “technical” asking rhetorically “What’s the point?” and concluded that the defendants’ cross-examination on the affidavits were a waste of time. 

 

The decision of a three judge panel of the Court of Appeal – Justices Weiler, Epstein and Huscroft – was written by Justice Epstein.  She found that at various points in the proceedings, Justice Corbett had conducted himself in a manner that gave the appearance that he favoured the plaintiffs’ position.  For example, a reasonable observer could perceive the adjournment that he gave at the first hearing on his own initiative as a judge going out of his way to assist the plaintiffs.  That perception was strengthened by Justice Corbett’s dismissive comment that he did not anticipate that the defendants’ cross-examination of the plaintiffs on their new material would add much to the background.

 

In the second hearing, Justice Corbett dismissed the motion halfway through the full day that had been scheduled without giving counsel the opportunity to make oral submissions on two issues that he properly identified as “principal arguments” joinder of claims and forum non conveniens. 

 

Justice Epstein found that deciding the jurisdictional challenge without allowing for oral argument on these major issues was a cause for particular concern in a case involving multiple parties on both sides.  Although Justice Corbett acknowledged the legitimacy of the defendants’ positions on a few occasions, the overall tenor of his remarks was derisive and suggested a view critical of jurisdiction motions and of this motion in particular, i.e. his finding that the motion was an "abuse of process" and a "colossal  waste of time".   Justice Epstein held that Justice Corbett’s finding that the motion was an abuse of process, made on his own initiative without the benefit of submissions or reference to any legal authority was unwarranted.  Further, Justice Corbett made discourteous comments towards the defendants’ counsel for no apparent reason.  In all three endorsements he repeatedly criticized defendants’ counsel on matters including their advocacy skills, knowledge of the law and handling of the matter.  He made a number of comments for which Justice Epstein found no justification. 

 

Justice Epstein held that an informed and reasonable observer would see Justice Corbett's amended endorsement, i.e. the endorsement he prepared for appeal purposes, as a desire by Justice Corbett to defend his decision to dismiss the motion.  His comments were motivated by his desire to respond to anticipated challenges to his decision.  Justice Corbett appeared to insinuate himself into the appeal process by attempting to defend his actions and his comments.

 

Justice Epstein considered the legal principles which apply to a motion for judicial bias.  She endorsed the decision of the Supreme Court of Canada in Yukon Francophone Schoolboard, Education Area No. 23 v. Yukon (Attorney General): 

 

What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude.  Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?

 

Having regard to that question, Justice Epstein concluded that she had no doubt that Justice Corbett was well-intentioned and that he had put a great deal of effort into resolving the jurisdiction issue.  However, her review of the three endorsements led her to conclude that Justice Corbett’s actions gave rise to a reasonable apprehension of bias.  In her opinion, the cumulative effect of Justice Corbett’s conduct was that an informed, reasonable observer, viewing the proceedings as a whole, would conclude that the defendants had not received a fair hearing to which they were entitled.

Regards,

Blair

 

 

 

Ontario Courts Refuse to Stay Action Against Nigerian Defendants

The Court of Appeal for Ontario released its decision in James Bay Resources Limited v. Mak Mera Nigeria Limited, 2015 ONCA 781  this week.  This is an appeal by Nigerian appellants who had lost a motion to stay an action brought by James Bay Resources Limited (“James Bay Resources”) on the ground that the Ontario courts lacked “jurisdiction simpliciter” and Ontario was not the convenient forum for the determination of the dispute between the parties. 

 

James Bay Resources entered into a Memorandum of Understanding (“MOU”) with the appellant, Adewale Olorunsola (“Sola”) on March 3, 2011.  The MOU was negotiated and signed in Ontario.  It set out an arrangement between the parties with respect to the acquisition of Nigerian oil and gas assets. 

 

On February 12, 2012, James Bay Resources and the appellant, Mak Mera Limited (“Mak Mera”) entered into a letter agreement which replaced the MOU (“Agreement”).  The Agreement was far more detailed than the MOU.  Sola signed both the MOU and the Agreement.

 

A dispute arose between the parties in respect of the contractual arrangements.  The dispute was fueled by a letter sent by Mak Mera to Royal Dutch Shell PLL on July 2, 2014.  The letter was copied to James Bay Resources, as well as to many others, including the Nigerian Ambassador to Canada and a number of officials of the Nigerian government.  Madam Justice MacFarland of the Court of Appeal found that absence truth, the statements made in the letter were "quite clearly defamatory" of James Bay Resources.

 

On September 4, 2014, James Bay Resources commenced proceedings against Mak Mera and Sola in Ontario.  On September 16, 2014, Mak Mera, Sola and Sola’s father-in-law (a Nigerian resident and Chairman of Mak Mera), commenced an action in Nigeria against numerous parties including James Bay Resources and its CEO, Stephen Shafsky.  Some of the claims in the Nigerian action were similar to those in the Ontario action. 

 

James Bay Resources moved in The Federal High Court of Nigeria to strike the Nigerian action on the grounds that the Nigerian court lacked jurisdiction.  It was unsuccessful.  James Bay Resources is appealing that order.

 

On March 2, 2015, Mak Mera and Sola moved to strike or permanently stay the Ontario action.  Justice Paul Perell of the Ontario Superior Court of Justice concluded that Ontario had jurisdiction simpliciter and identified several presumptive factors that would apply, including that Sola is an Ontario resident and both the MOU and the Agreement were negotiated and signed in Ontario.  Justice Perell also found that the Agreement provides that it is governed by Ontario law and contains a choice of forum clause that names Ontario as the jurisdiction where any disputes would be resolved.  He noted, “Neither Mak Mera nor Mr. Sola has advanced any cogent argument that there is a rebuttal of the contractual connection as a presumptive factor.  Their arguments may be relevant to the issue forum conveniens, but jurisdiction is not rebutted.”.  Mak Mera and Sola appealed to the Court of Appeal. 

 

The appellants made no oral submissions rebutting the contractual connection as a presumptive factor.  Justice MacFarland held that the arguments raised on appeal went to the merits of the claims, not to jurisdiction of the Ontario courts.  Those issues did not displace or challenge the fact that both agreements (the MOU and the Agreements) were negotiated and signed in Ontario and that Sola is an Ontario resident – both are strong, presumptive factors.   

 

The appellants also argued that Justice Perell had erred in law by failing to specifically consider comity in his analysis.  Justice MacFarland embarked on a detailed analysis of the goal of comity in jurisdictional motions.  She referred to the decision of the Supreme Court of Canada in Van Breda v. Village Resorts, [2012] 1 SCR572:

 

The goal of the modern conflicts system is to facilitate exchanges and communications between people in different jurisdictions that have different legal systems.  In this sense it rests on the principle of comity.  But comity itself is a very flexible concept.  It cannot be understood as a set of well-defined rules, but rather as an attitude of respect for and deference to other states and, in the Canadian context, respect for and deference to other provinces and their courts.  Comity cannot subsist in private, international law without order, which requires a degree of stability and predictability in the development and application of the rules governing international or inter-provincial relationships.  Fairness and justice are necessary characteristics of a legal system, but they cannot be divorced from the requirements of predictability and stability which assure order in the conflicts system.   In the words of LaForest J., in Morguard, “what must underlie a modern system of private, international law and principles or order and fairness, principles that ensure security of transactions with justice”.

 

Accordingly, Justice MacFarland found that comity is not a stand-alone factor.  She held that it was part and parcel of the forum non conveniens assessment in a given case.  In dismissing the appeal, Justice MacFarland held that Justice Perell had considered the issue of comity in his analysis.  He had done so implicitly when he outlined and considered all of the relevant factors in coming to his conclusion that Nigeria was not the more convenient forum. 

 

Justice Perell was aware of the Nigerian litigation which was started after the Ontario action.  He was aware that James Bay Resources had filed a statement of defence in that action, and brought an unsuccessful motion to strike and was appealing the dismissal of its motion.  The appellants had cited no law for their argument that by filing a statement of defence in the Nigerian action, James Bay Resources had attorned to the jurisdiction of the Nigerian courts. 

 

Justice MacFarland agreed with Justice Perell’s conclusion that “balancing all factors, Nigeria is not clearly the appropriate forum for the dispute and Ontario is not forum non conveniens.”.

Regards,

Blair

 

 

Supreme Court Permits Enforcement Proceedings Against Chevron

In closing another chapter in what has been a very long story, the Supreme Court of Canada ruled unanimously that forty-seven Ecuadorian villagers can proceed with their Ontario lawsuit against Chevron Corporation (“Chevron”) and Chevron Canada Limited (“Chevron Canada”) to recognize and enforce a U.S. $9.51 million judgment that they obtained against Chevron in the courts of Ecuador.

 

This writer has written about this case before. After the plaintiffs commenced an action in the Ontario Superior Court, Chevron moved to permanently stay the action on the basis that the Ontario Court had no jurisdiction to hear the matter. The motion judge ruled in the villagers’ favour with respect to the issue of jurisdiction. However, the judge exercised the court’s power to stay the proceedings on its own motion on the basis that pursuing a recognition and enforcement proceeding against Chevron in Ontario, where Chevron claimed it had no assets, would be futile and a waste of time and resources.

 

The Ontario Court of Appeal reversed that decision, holding that the Ontario courts need not erect additional obstacles  to the villagers' 27 year fight against Chevron and its predecessor Texaco Oil.  The action had been brought in Ecuador as a result of extensive environmental pollution that had disrupted the lives and jeopardized the futures of approximately 30,000 Ecuadorian indigenous villagers.  The plaintiffs' attempts to obtain compensation had been met with obstacles and roadblocks by Chevron the entire way.

 

The Supreme Court of Canada agreed. Justice Gascon, writing for the unanimous court, held that in order to recognize and enforce a foreign judgment, the only prerequisite is that the foreign court have a real and substantial connection with the litigants or with the subject matter of the dispute or that the traditional bases of jurisdiction were satisfied.

 

Canadian courts have never required that there be a real and substantial connection between the defendant or the action and the enforcing court for jurisdiction to exist in recognition and enforcement proceedings. The Supreme Court held that an unambiguous statement  that a real and substantial connection was not necessary would have the benefit of providing a fixed, clear and predictable rule, and would help to avoid needless and wasteful jurisdictional inquiries.

 

The Court held that there were two considerations of principle that support the view that a real and substantial connection test should not be extended to an enforcing court. Firstly, in an action for recognition and enforcement, the only purpose of the action is to allow a pre-existing obligation to be fulfilled. As the enforcing court is not creating a new substantive obligation, there can be no concern that the parties are situated elsewhere or that the facts underlying the dispute are properly addressed in another court. Each jurisdiction has an equal interest in the obligation resulting from the foreign judgement and no concern about territorial overreach could emerge.

 

The Court held that it must be remembered that the notion of comity has consistently been found to underlie Canadian recognition and enforcement law. The need to acknowledge and show respect for the legal action of other states has remained one of comity’s core components and militates in favour of recognition and enforcement. No unfairness results to judgment debtors from having to defend against recognition and enforcement proceedings – through their own behaviour and illegal non-compliance, they have made themselves a subject of outstanding obligations, so they may be called upon to answer for their debts in various jurisdictions.

 

The court held that requiring any defendant to be present or to have assets in the enforcing jurisdiction would only undermine order and fairness. In today’s globalized world and electronic age, to require that a judgment creditor wait until the foreign debtor is present or has assets in the province before a court can find that it has jurisdiction in recognition and enforcement proceedings would be to turn a blind eye to current economic reality.

 

Secondly, the court held that finding that there is no requirement of a real and substantial connection between the defendant or the action and the enforcing court is also supported by the choices made by the Ontario legislature, all other common-law provinces and territories, Quebec, other international common-law jurisdictions and most Canadian conflict of laws scholars.

 

In this case, the motion judge had correctly found jurisdiction with respect to both Chevron and Chevron Canada. The establishment of jurisdiction did not mean that the plaintiffs would necessarily succeed in having the Ecuadorian judgment recognized and enforced. It did nothing more than afford the Plaintiffs the opportunity to seek recognition and enforcement in Ontario. Chevron and Chevron Canada could use the available procedural tools to defend against the plaintiffs’ allegations.

The case will continue and will continue to be hard fought.

Regards,

Blair

 

Ontario Court of Appeal Stays Securities Class Action

In a recent discussion (Kaynes v. BP, PLC 2014 ONCA 580), the Ontario Court of Appeal stayed a proposed class action against BP, PLC for secondary market misrepresentation on the principle of forum non conveniens.  The Court concluded that while Ontario Courts had jurisdiction to hear the class action, there was another forum that was clearly more appropriate for the adjudication of the plaintiff's claim and of the claims of foreign exchange purchasers of BP's securities.

 

The plaintiff's claim rose out of the Deep Water Horizon oil spill that occurred in the Gulf of Mexico in April of 2010.  The plaintiff alleged that BP made certain misrepresentations in its public disclosures, before and after the spill, related to its operations, safety programs, and the accident that impacted the price of BP's shares.  His claim was based on part XXIII.1 of the Ontario Securities Act which provides a statutory cause of action for secondary market misrepresentation.

 

The plaintiff, a resident of Ontario, purchased his shares over the New York Stock Exchange. The proposed class included all residents of Canada who acquired BP securities between relevant dates wherever those securities were purchased.

 

BP's challenge of Ontario's jurisdiction to hear the class action was dismissed by a motion Judge.  BP appealed that decision to the Court of Appeal.  The Court of Appeal agreed with the motion judge that Ontario did have jurisdiction simpliciter, but concluded that the motion Judge had erred in principle in failing to decline jurisdiction on the basis of forum non conveniens.

 

The Court of Appeal held that there was a real and substantial connection between BP, or the subject matter of the claim and the forum despite the fact that BP was a UK corporation headquartered in London, England and did not own any real or personal property in Canada, nor did it carry on business in Canada.  BP's common shares were listed for trading on the London Stock Exchange, the Frankfurt Stock Exchange and the New York Stock Exchange.  They had never been listed on the Toronto Stock Exchange.

 

However, BP was a "reporting issuer" under Ontario securities regulations when the plaintiff purchased what is known as American Depository Shares ("ADS") a form of equity security currently listed for trading only on the New York Stock Exchange.  BP was a reporting issuer during the period when ADS were traded on the TSX.  In 2009 after ADS were delisted from the TSX, BP ceased to be a reporting issuer in Ontario and other Canadian provinces on the undertaking that it would continue to send relevant investor documents to its shareholders in Canada.

 

BP did not dispute that it was required by the undertaking send the plaintiff the documents that contained the alleged misrepresentations.  The Court of Appeal held that when BP released the documents, BP knew by virtue of the undertaking it had given that even if the initial point of release was outside Ontario, the documents were "certain to find (their) way to Ontario and to its Ontario shareholders".  Accordingly, by releasing such documents, BP committed an act that had an immediate and direct connection with Ontario.  That was sufficient to establish a real and substantial connection between the claim and Ontario.

 

Accordingly, the Court of Appeal agreed with the motion judge that such connection was a presumptive connecting factor for a tort committed in Ontario and therefore there was jurisdiction simpliciter in Ontario.

 

However the Court of Appeal indicated that a court has discretion to decline to exercise its jurisdiction under the forum non conveniens doctrine if the defendant showed that another forum was clearly more appropriate for the adjudication of the action.

 

In this case, BP argued that Ontario should decline jurisdiction in favour of the United States and the United Kingdom.   Laws of both countries related to jurisdiction over such claims was based on the principle that securities litigation should take place in forum where the securities transaction took place.  Their approach to jurisdiction over securities litigation was based principle of comity.

 

The Court of Appeal held that the motion Judge had erred in failing to take to account the principle of comity and erred in law with respect to a related issue of avoiding a multiplicity proceedings.

 

Both the US and the UK reserved jurisdiction on the basis of the location of stock exchange where the securities are traded. US law goes one step further and provides for the exclusive jurisdiction of the US courts over such claims. In keeping with the principle of comity, the court is obliged to consider that claim of exclusive jurisdiction.  The Court of Appeal  held that asserting Ontario's jurisdiction over the plaintiff's claim would be inconsistent with the approach taken under both US and UK law with respect jurisdiction over claims for secondary market misrepresentation. The principle of comity strongly favoured declining jurisdiction. 

In addition, avoiding a multiplicity of proceedings means that what should be avoided is litigation in more than one jurisdiction over the same claims of the same parties. Proposed class parties who have not opted out of the US proceedings would be problematic in that regard.

As a result, the Court stayed the proposed class proceeding.

Regards,

Blair

Man can sue in Ontario for Lashes given in Qatar

Earlier this month, Master R.A. Muir, of the Ontario Superior Court of Justice, refused to stay an action commenced in Ontario by Fakhrul Islam Kazi against Qatar Airlines and others, as a result of his alleged treatment at the hands of officials in Qatar's criminal justice system. The Master found that the defendants had not met the burden of showing why the court should decline to exercise its jurisdiction and displace Ontario as the forum chosen by the plaintiff with another forum, i.e. Qatar.   

In the case (reported at Kazi v. Qatar Airlines, 2013, ONSC1370), the plaintiff boarded an Air Canada flight from Toronto to London's Heathrow airport. His ultimate destination was Dhaka, Bangladesh. However, his itinerary included a connecting flight between Heathrow to Doha, Qatar, on a flight operated by the defendant, Qatar Airlines.

During the course of the flight from London to Qatar, the plaintiff was involved in a dispute with members of the flight crew who alleged that he was smoking in a lavatory, consuming alcohol and behaving in an unruly and disruptive fashion. As a result, the flight crew notified airport security and the plaintiff was detained upon landing in Doha.

Mr. Kazi was charged with two offences under the laws of Qatar:

(a) drinking wine while being a Muslin; and

(b) disturbing the peace as a result of alcohol consumption.

Mr. Kazi was incarcerated in Qatar for almost two months. He was found guilty and sentenced to receive 40 lashes and pay a fine of approximately $550.

After returning to Canada, Mr. Kazi alleges that he suffered numerous injuries and damages as a result of his treatment while detained. He commenced a lawsuit against the defendants alleging that they had a duty to warn him of the prevailing laws of Qatar with respect to the consumption of alcohol by Muslims and that they had failed to take all reasonable steps to ensure that he was properly informed of such laws.

The defendants subsequently brought a motion seeking to stay the action on the basis that Qatar was the more appropriate forum in which to litigate the dispute.

In reviewing the law as set out by the Supreme Court of Canada's decision in Club Resorts Ltd. v. Van Breda, 2012, SCC17,  the Master concluded that Qatar was not clearly a more appropriate forum for disposing of the issues raised in the action. The Master reviewed factors such as the location of the witnesses and the expense required for them to travel to the place of trial and  the issue of the law to be applied to the claim, both of which he saw were neutral factors.  In applying the test set out in Van Breda, the Master reaffirmed that courts should use an analytical approach to establish the existence of a real and substantial connection between the case and  Ontario, and determine whether there was a similar connection to Qatar.  In this instance, the defendant had not shown that Qatar was clearly "in a better position to dispose fairly and efficiently of the litigation".

Regards,

Blair

Ontario Court refuses to assume jurisdiction in a New York MVA

In a recently released decision, Mr. Justice Perell of the Ontario Superior Court of Justice permanently stayed an action brought by a plaintiff who resided in Ontario, but who was struck by a motor vehicle while she was crossing a street in New York state. Justice Perell found that none of the presumptive factors which would give Ontario "jurisdiction simpliciter", i.e. a real and substantial connection to the action, were present in the case.

The plaintiff sued the driver of the motor vehicle for negligence. She also sued her insurance company under the under-insured coverage of her standard motor vehicle insurance policy. The defendant moved to have the plaintiff's action permanently stayed on the grounds that the Ontario Court did not have jurisdiction simpliciter, or alternatively, that Ontario was not the convenient forum for litigating the action.

The plaintiff did not oppose the motion. However, her insurance company which had cross-claimed against the defendant opposed the motion.

Justice Perell ruled that the Ontario Court did not have jurisdiction simpliciter over either the main action or the crossclaim. Because there was no jurisdiction simpliciter it was not necessary to rule on whether Ontario was "forum conveniens" - i.e. the more appropriate forum in which to litigate. However, since there may be an appeal, he ruled that Ontario is forum non-conveniens (i.e. not the more appropriate forum for litigating the action) and that New York was the proper forum in which to litigate the tort claim against the defendant.

After reviewing the facts, Justice Perell held that there were three ways in which the court could assert jurisdiction against an out of province defendant in a tort claim:

1. based on the defendant's presence in the jurisdiction;

2. based on the defendant's consent; and

3. based on the court's assumption of jurisdiction.

In the circumstances, this case was about "assumed jurisdiction".

Assumed jurisdiction arises when the court takes jurisdiction because the action has a real and substantial connection to Ontario. Justice Perell reviewed the recent decision of the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda and the "analytical framework and legal principles" set out by the court in that case.

In concluding there was no jurisdiction simpliciter to Ontario, the judge reviewed the "presumptive" factors established by the Supreme Court and found that, the defendant was not domiciled or resident in Ontario; the defendant did not carry on business in Ontario; the tort was committed outside Ontario; and there was no contract connected with the dispute which was made in Ontario.

As for the factor that there was no contract connected with the dispute which was made in Ontario, Justice Perell concluded that the defendant was not a party to the contract between the insurance company and the plaintiff . The plaintiff's claim under her insurance policy could be tried without the defendant as a party (that might explain why the plaintiff was not opposing the defendant's motion). She intended to litigate in Ontario and leave the insurance company with the problem of re-litigating the issue in the United States.

The insurance company argued that the plaintiff's contract action against it had to be brought in Ontario and therefore the insurance company had a right of subrogation against the defendant. It argued that if the Ontario action was stayed against the defendant, it would have to litigate in two different jurisdiction with the possible of inconsistent judgments. Essentially, the insurance company's argument for assumed jurisdiction was that the defendant was a necessary party to the crossclaim and that his presence in the Ontario action was necessary to avoid a multiplicity of proceedings.

Justice Perell rejected the insurance company's argument based on the Ontario Court of Appeal's reasoning in the Club Resorts case.  The Ontario Court of Appeal held that damages being sustained Ontario or the fact that the foreign defendant was a necessary party are not presumptive factors that the court should take into account.

With respect to the issue of forum conveniens, Justice Perell reviewed the list of factors that the courts may consider in determining which forum was the more appropriate forum for the action: The defendant and two witnesses were in New York; the tort occurred in New York;  American law will govern liability; and quantification of damages would be governed by Ontario law. Considering all of these circumstances, the judge declined to exercise the court's jurisdiction. He ruled "It does not strike me as fair or unreasonable to make Ms. Misura travel to the jurisdiction where the action occurred and where the tortfeasor resides".

Regards,

Blair