[Stephen G.A. Pitel is Associate Professor at Western University, Faculty of Law]
On May 30, 2012, residents of Ecuador started an action in the Ontario Superior Court of Justice seeking to enforce a judgment in their favour of an Ecuadorian court against Chevron. The amount of the judgment is a staggering $18 billion. Chevron has announced that it will resist the enforcement litigation in Ontario.
Under Ontario’s common law, confirmed relatively recently by the Supreme Court of Canada in
Beals v Saldanha, the test for whether a court will enforce a foreign judgment ordering the payment of money has three requirements. First, the judgment must be final. Second, the court granting the judgment must have had jurisdiction on a particular basis. This is sometimes called jurisdiction in the international sense or jurisdictional competence. Third, the judgment must be for a fixed sum of money and not a tax or penalty. In general see Stephen G.A. Pitel & Nicholas S. Rafferty,
Conflict of Laws at 159-73.
On the first requirement, a judgment is considered to be final even though there is time remaining within which to launch an appeal or an appeal has in fact been launched (as is the case here):
Nouvion v Freeman (1889), 15 App Cas 1 (HL) at 10-11 and 13. However, in such a situation it is relatively straightforward for the defendant in the enforcement proceedings to obtain a stay of the action on the basis that the court should await the results of the appeal. It would seem likely that Chevron could have the Ontario proceedings stayed pending the results of the appeal in Ecuador. Even if the enforcement proceedings are stayed, starting them can still have advantages to the plaintiff. The stay does not stop the plaintiff attempting to obtain a
Mareva injunction to freeze assets or other forms of interlocutory relief.
