Supreme Court of Canada Clarifies “Carrying on Business” Standard for Enforcement of Foreign Judgments
In our increasingly globalized world where businesses can easily operate virtually, the question of whether a company is “carrying on business” in Canada can be difficult to answer. The Supreme Court of Canada recently considered this issue in the context of enforcement of foreign judgments, and declined an invitation to make it easier for foreign creditors to seize assets in Canada to satisfy debts incurred outside of Canada. In H.M.B. Holdings Ltd. v. Antigua and Barbuda, the Supreme Court held that to be “carrying on business” in a jurisdiction requires some kind of actual presence, whether direct or indirect. A physical presence in the form of maintenance of physical premises will be compelling, and a virtual presence that falls short of an actual presence will not suffice.
Background
H.M.B. Holdings concerned efforts by a creditor to enforce in Ontario a multi-million dollar foreign judgment against the Antiguan government it received in May 2014. The foreign judgment resulted from an expropriation by the Antiguan government of a resort property in Antigua owned by H.M.B. Holdings Limited.
In October 2016, H.M.B. Holdings Limited brought a proceeding to enforce the foreign judgment in B.C., even though the Antiguan government did not have any property or assets there nor any physical presence. The only connection to B.C. was that the Antiguan government had contracts with four businesses in B.C. that were to be paid a finder’s fee to direct applicants to a program of the Antiguan government that effectively granted citizenship to investors in exchange for making a monetary investment in Antigua under its Citizenship by Investment Program (CIP).
B.C.’s Limitation Act provides for a ten-year limitation period to enforce a foreign judgment, while Ontario’s Limitations Act, 2002 provides for a much shorter two-year limitation period. In this way, the enforcement proceeding in B.C. was not time-barred, but would have been time-barred had it been brought in Ontario. The Antiguan government did not resist having the Antiguan judgment enforced in B.C., and a B.C. default judgment was issued in 2017.
Decisions Below
Supreme Court of Canada Decision
The Supreme Court held that to determine under the REJA whether a defendant is carrying on business in a jurisdiction requires a fact-based inquiry into whether it has some direct or indirect presence in the jurisdiction, accompanied by a degree of business activity that is sustained for a period of time. Some kind of actual presence, whether direct or indirect, is required. A physical presence in the form of maintenance of physical premises will be compelling, and a virtual presence that falls short of an actual presence will not suffice. The Supreme Court also directed courts when analyzing this issue to consider various non-exhaustive indicia, including:
- whether or not the fixed place of business from which the representative operates was originally acquired to enable them to act on behalf of the foreign corporation;
- whether the foreign corporation has directly reimbursed the representative for the cost of their accommodation at the fixed place of business and the cost of their staff;
- what other contributions, if any, the foreign corporation makes to the financing of the business carried on by the representative;
- how the representative is remunerated;
- what degree of control the foreign corporation exercises over the running of the business conducted by the representative;
- whether, and if so how, the representative displays the foreign corporation’s name at their premises or on their stationery;
- what business, if any, the representative transacts as principal exclusively on their own behalf; and
- whether the representative makes contracts with customers or other third parties in the name of the foreign corporation or otherwise in such manner as to bind it.
The Supreme Court did not disturb the findings of fact below that Antigua was not carrying on business in B.C. In the result, the Supreme Court dismissed the appeal.
The majority of the Supreme Court declined to answer the question of whether a derivative judgment can be enforced under the REJA. It left that question to be resolved in future litigation (although, notably, Côté J. in a concurring opinion indicated she would have held that derivative judgments can be enforced under the REJA).
Concluding Remarks
While the decision in H.M.B. Holdings shows there are limits on what can properly be considered “carrying on business” in Canada for purposes of enforcing foreign judgments, that determination is very fact specific.
For more information concerning H.M.B. Holdings or issues involving enforcement of foreign judgments or carrying on business in Canada, please contact any member of our Dispute Resolution Group.
Expertise
Authors
Insights
-
Capital Markets
Public Safety Canada Releases Updated Guidance on Modern Slavery Reporting Obligations
The Fighting Against Forced Labour and Child Labour in Supply Chains Act (the “Act”) came into force on January 1, 2024, implementing enhanced reporting requirements for certain entities to… -
Crisis Management and Urgent Proceedings
Panoramic Next: Crisis Management 2024 - Canada Chapter
Mark Dunn and Sarah Stothart co-authored the Canada Chapter of Panoramic Next: Crisis Management 2024. Through a series of interviews with expert legal… -
Capital Markets
Modern Slavery Reporting Obligations for Canadian Entities Effective January 1, 2024
The Fighting Against Forced Labour and Child Labour in Supply Chains Act (the “Act”) came into force on January 1, 2024, implementing enhanced reporting requirements for certain companies and… -
Dispute Resolution
Director Duties and Climate Change
Decisions earlier this year from the English courts in ClientEarth v Shell Plc et al., and the recent appeal decision from the Court of Appeal of England and Wales, shed light on climate change issues… -
Intellectual Property
Canadian Intellectual Property Office Increases Fees Effective January 1, 2024
As of January 1, 2024, the Canadian Intellectual Property Office (CIPO) will be increasing most of its fees by 25%. Filing fees, renewal fees, opposition filing fees, as well as fees for initiating… -
Dispute Resolution
The Courtroom Climate, Best Lawyers
In Best Lawyers’ recent 2023 Business Edition, Peter Kolla explores justiciability, and other limitations Canadian Courts face when trying climate change cases. Excerpt from "The Climate…
Featured Work
-
Restructuring
LoyaltyOne cross-border restructuring
Goodmans LLP is counsel to KSV Restructuring Inc. in its capacity as court-appointed monitor of LoyaltyOne, Co. in its restructuring proceedings under the Companies’ Creditors Arrangement Act before… -
Mergers and Acquisitions
Browning West issues letter to Gildan Activewear’s board of directors outlining steps to restore stakeholder confidence
Goodmans LLP is acting for Browning West, LP in connection with issuing a letter to Gildan Activewear Inc. advocating for the reinstatement of its former CEO, Glenn Chamandy… -
Mergers and Acquisitions
Apotex to acquire Searchlight Pharma
Goodmans LLP is acting for Apotex Inc. in connection with its acquisition of Searchlight Pharma Inc… -
Mergers and Acquisitions
Playmaker Capital Inc. enters into an agreement to be acquired by Better Collective A/S
Goodmans LLP acted for Playmaker Capital Inc. in connection with its agreement to be acquired by Better Collective A/S… -
Mergers and Acquisitions
Coinsquare, WonderFi and CoinSmart close business combination
Goodmans LLP acted for Coinsquare Ltd. in its business combination transaction with WonderFi Technologies Inc. and CoinSmart Financial Inc… -
Shareholder Activism
Magnet Forensics acquired by Thoma Bravo
Goodmans LLP acted for Nellore Capital Management, the largest shareholder of Subordinate Voting Shares of Magnet Forensics, in relation to Thoma Bravo’s proposed acquisition of Magnet Forensics…
News & Events
-
Technology
Peter Ruby at OBA's ADR Strategies for Technology Disputes: Crafting Efficient Resolutions
Join Peter Ruby on May 23rd at 12:00 pm for the ADR Strategies for Technology Disputes: Crafting Efficient Resolutions, webinar at The Canadian Bar Association. Elevate your conflict… -
Banking and Financial Services
The Canadian Legal Lexpert Directory 2024 Continues to Recognize Goodmans
We are proud to announce Goodmans LLP has once again been recognized in the 2024 edition of The Canadian Legal Lexpert Directory.91 Goodmans lawyers have been recognized as top-tier in their… -
Dispute Resolution
Goodmans Partners Recognized in the Lexpert Special Edition: Litigation 2023
We are delighted to announce the Lexpert Special Edition: Litigation 2023 once again features Goodmans partners among Canada's experts in litigation.Congratulations to our 13 featured…