(A)
Ontario's International Commercial Arbitration Act contemplates an arbitral award recognized by an
Ontario court is enforceable in the same manner as a judg- ment or order of the court. Pursuant to that Act, an arbitral award is to be binding and enforceable, irrespective of the country in which the award was made. Accordingly, it does not matter whether the country hosting the arbitration has enacted legislation in accordance with the United Nations' Model Law. While the legislation contemplates some cir- cumstances pursuant to which enforcement can be refused, these grounds for refusal are narrow. For a recent example, see the 2009 Ontario Superior Court of Justice decision in Abener Energia v. Sunopta Inc.
(A)
Stays on the grounds of forum non conveniens and anti-suit injunctions are two common routes to avoid
litigation in a foreign jurisdiction. Forum non conveniens is the doctrine governing situations where a defendant moves for a stay of judicial proceedings in a given jurisdiction on grounds there exists elsewhere a more appropriate forum for the airing of the dispute. Anti-suit injunctions are effectively the flipside, whereby you apply to a local court for an order restraining the plaintiff from proceeding before the foreign court. Although lower courts have made exceptions for par- ties who cannot afford to first pursue the stay, the Supreme Court of Canada has stated that it is preferable that the party seeking an anti-suit injunction first seek a stay of the foreign proceedings in the foreign jurisdiction on forum non conve- niens grounds, and only seek an anti-suit injunction if the application for a stay fails. See the 1993 Supreme Court of Canada decision in Amchem Products Incorporated v. British Columbia (Workers' Compensation Board).
(B) FALSE. But stay tuned. The CJPTA is a model law that has been developed by Canada's Uniform Law Confer-
ence. To date, three of the 10 provinces have enacted CJPTA legislation, and Ontario is currently considering it as an option. In jurisdictions with CJPTA legislation, the Supreme Court of Canada has held that it is the statute, not the com- mon law principles of forum non conveniens and comity,
that will guide the courts in determining venue: see the 2009 Supreme Court of Canada decision in Teck Cominco Metals Ltd. v. Lloyd's Underwriters. However, the "real and substan- tial connection" test has not disappeared; it is just that the legislation identifies circumstances in which the test will be presumed to have been met, such as when the case con- cerns a business carried out in the local jurisdiction, or where there is a contractual provision identifying the local courts as having jurisdiction.
(B) The remedy you're looking for is an order for discov- ery of a third party, otherwise known as a Norwich
Order — from the leading 1974 U.K. case on this issue, Norwich Pharmacal Co. v. Customs and Excise Commission- ers. Norwich Orders are rare in Canada, but their availability was recently confirmed in the Court of Appeal for Ontario 2009 decision in GEA Group AG v. Ventra Group Co. Nor- wich Orders operate to obtain discovery from third parties, even in the absence of a pending lawsuit. Once only rarely used, these types of orders are gaining traction in Canada and worldwide, as lawyers and litigants use them to locate and ultimately freeze money flows across borders: see the 2007 Ontario Superior Court of Justice ruling in Isofoton S.A. v. Toronto Dominion Bank. To identify importers of patent infringing goods, see the 1998 Federal Court of Appeal deci- sion in Glaxo Wellcome PLC v. Minister of National Revenue. To put a name to an ISP address that may be involved in online activity that is tortious or fraudulent, see the 2009 Ontario Superior Court of Justice ruling in York University v. Bell Canada Enterprises.
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n One correct: Might be time to brush up n Two correct: Not bad, but could do better. n Three correct: Very well done, but not perfect. n Four correct: Impressive.
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