44 www.lexpert.ca
Top 10 Business Decisions
WRITTEN BY AIDAN MACNAB, BERNISE CAROLINO, JASON TAN, AND ANGELICA DINO
THE SUPREME Court of Canada ruling
clarified what "carrying on business" means in
the context of foreign judgments and private
international law.
e court found that s. 3(b) of Ontario's
Reciprocal Enforcement of Judgments Act
prohibited the appellant, Antigua, from reg-
istering a BC judgment in Ontario because it
was not carrying on business in BC. Section
3(b) allows a ruling from another province
or territory to be registered for enforcement
in Ontario. e provision requires the entity
to conduct business in the jurisdiction where
the judgment was rendered.
e decision will apply to other legisla-
tion in Canada that deals with reciprocal
enforcement.
Aer the Caribbean country Antigua and
Barbuda expropriated waterfront property
owned by HMB Holdings, a court in that
country ordered Antigua to compensate the
potential investors with information.
"Section 3(b) places two burdens on a judg-
ment debtor seeking to raise this defence" to
the registration of a judgment, Chief Justice
Richard Wagner wrote in the decision.
"First, the judgment debtor must estab-
lish that they were not carrying on business
or ordinarily resident in the jurisdiction of
the original court. Second, the judgment
debtor must also show that they did not
voluntarily appear or otherwise submit to
the original court's jurisdiction during the
proceedings the judgment creditor brought
in that court. If the judgment debtor shows
the Ontario court that these two conditions
are met, then s. 3(b) bars the registration of
the judgment."
• HMB Holdings Limited > Bennett Jones
LLP > Lincoln Caylor, Ranjan Agarwal,
Nina Butz
• Attorney General of Antigua and
Barbuda > Aird & Berlis LLP > Steve J.
Tenai, Sanj Sood
CLIENTS > FIRMS > LAWYERS
company. In 2016, HMB tried to enforce
the ruling in BC since it could not bring the
action in Ontario because the two-year lim-
itation period had expired. e BC court
granted default judgment because Antigua
did not defend the action.
Under the Reciprocal Enforcement of
Judgments Act, the company then applied
in Ontario to recognize the BC judgment.
Ontario's Superior Court and Court of Ap-
peal dismissed the action because Antigua
was not doing business in BC. A five-judge
SCC panel agreed – the BC judgement
cannot be enforced in Ontario because
Antigua's activities in BC did not meet the
requirements of s. 3(b) of the Reciprocal
Enforcement of Judgments Act.
Antigua had four representatives in BC
in its Citizenship by Investment program,
but the court said their involvement
amounted to little more than providing
H.M.B. HOLDINGS LTD. V. ANTIGUA AND BARBUDA,
2021 SCC 44
