(a) In an action to recognize and enforce a foreign judgment, must there be a real and substantial connection between the defendant or the dispute and Ontario for jurisdiction to be established?
(b) Do the Ontario courts have jurisdiction over Chevron Canada, a third party to the judgment for which recognition and enforcement is sought?
The enforcing court, in this case Ontario, must determine whether the foreign court had a real and substantial connection to the action or the parties, at least to the level established in Morguard, supra. A real and substantial connection is the overriding factor in the determination of jurisdiction....
If a foreign court did not properly take jurisdiction, its judgment will not be enforced....
Once the "real and substantial connection" test is found to apply to a foreign judgment, the court should then examine the scope of the defences available to a domestic defendant in contesting the recognition of such a judgment.
(Beals, at paras. 37-39)
The foreign judgment is evidence of a debt. All the enforcing court needs is proof that the judgment was rendered by a court of competent jurisdiction and that it is final, and proof of its amount. The enforcing court then lends its judicial assistance to the foreign litigant by allowing him or her to use its enforcement mechanisms.
(Pro Swing, at para. 11)
This statement is consistent with Morguard and Beals : there is no need to probe the relationship between the enforcing forum and the action or the defendant. Deschamps J.’s one prior, passing reference to the need for the enforcing court to have jurisdiction cannot serve as a basis for inferring the existence of a significant, and previously unstated, hurdle to recognition and enforcement that simply does not exist. As is evident from her reasons, she retained the focus on jurisdiction in the original foreign proceeding.
In an age of electronic international banking, funds once in the hands of a judgment debtor can quickly leave a jurisdiction. While it is highly unlikely that a judgment debtor would move assets into a jurisdiction in the face of a pending recognition action, in some circumstances judgment debtors may not control the timing or location of the receipt of an asset due to them; control may rest in the hands of a third party as a result of contract or otherwise. Where a judgment creditor under a foreign judgment learns that its judgment debtor may come into possession of an asset in the foreseeable future, it might want the recognition of its foreign judgment in advance of that event so that it could invoke some of the enforcement mechanisms of the receiving jurisdiction, such as garnishment. To insist that the judgment creditor under a foreign judgment await the arrival of the judgment debtor's asset in the jurisdiction before seeking recognition and enforcement could well prejudice the ability of the judgment creditor to recover on its judgment. Given the wide variety of circumstances - including timing - in which a judgment debtor might come into possession of an asset, I do not think it prudent to lay down a hard and fast rule that assets of the judgment debtor must exist in the receiving jurisdiction as a pre-condition to the receiving jurisdiction entertaining a recognition and enforcement action. [para. 81]
I note that in one Ontario lower court decision, albeit in the context of forum non conveniens, the existence of assets has been held to be irrelevant to the jurisdictional inquiry: see BNP Paribas (Canada) v. Mécs, (2002), 60 O.R. (3d) 205 (S.C.J.).
We hold that where plaintiff failed to identify any property owned by defendants in Michigan, the trial court erred in holding that it was unnecessary for plaintiff to demonstrate that the Michigan court had personal jurisdiction over defendants in this common-law enforcement action.
We have not found any authorities indicating that the foundational requirement of demonstrating a trial court’s jurisdiction over a person or property is inapplicable in enforcement proceedings. [pp. 880 and 884]
Other U.S. courts have adopted an even more extreme position, holding that "attachment of assets of the judgment debtor within the state is not sufficient to provide jurisdiction, and that personal jurisdiction over the judgment debtor is necessary": Brand, at p. 506, citing Base Metal Trading, Ltd. v. OJSC "Novokuznetsky Aluminum Factory", 283 F.3d 208 (4th Cir. 2002), cert. denied, 537 U.S. 822 (2002).
The security of crossborder transactions rests on the confidence that the law will enable the prompt and effective determination of the effect of judgments from other legal systems. For this reason, there are no separate or additional jurisdictional requirements, such as the residence of the defendant or the presence of the defendant’s assets in the jurisdiction, for a court to determine whether a foreign judgment may be recognized or enforced. [Emphasis added; p. 14-1.]
Subject to the defences, a Canadian court will enforce a foreign judgment if the foreign court or foreign jurisdiction had a "real and substantial connection" to the dispute. However, it is not necessary for the plaintiffs to establish that Ontario has a real and substantial connection with the litigation; it is sufficient to show that the foreign court that gave the judgment had a real and substantial connection with the matter. [Footnotes omitted; ¶11,181.]
Because an action on the foreign judgment is a new legal proceeding, issues of jurisdiction... must be considered at the outset. If the defendant is resident in the country in which recognition and enforcement is sought, it will be easy to establish jurisdiction. But in many cases the defendant will not be resident there: he or she will only have assets there, which the plaintiff is going after to enforce the judgment. Typically the presence of assets in a province is an insufficient basis for taking jurisdiction over a foreign defendant. But most provinces have made specific provision to allow for service ex juris in such cases. For example, in Ontario service outside the province can be made as of right where the claim is "on a judgment of a court outside Ontario."... [T]he plaintiff would still need to show a real and substantial connection to the province in which enforcement was sought. Under this test, the presence of assets may be insufficient to ground substantive proceedings but they should virtually always be sufficient to ground proceedings for recognition and enforcement. [Footnote omitted; pp. 159-60.]
Chevron Canada operates a business establishment in Mississauga, Ontario. It is not a mere "virtual" business. It runs a bricks and mortar office from which it carries out a non-transitory business with human means and its Ontario staff provides services to and solicits sales from its customers in this province. [para. 87]
These findings have not been contested. They are sufficient to establish presence-based jurisdiction. Chevron Canada has a physical office in Mississauga, Ontario, where it was served pursuant to Rule 16.02(1)(c), which provides that valid service can be made at a place of business in Ontario. Chevron Canada’s business activities at this office are sustained; it has representatives who provide services to customers in the province. Canadian courts have found that jurisdiction exists in such circumstances: Incorporated Broadcasters Ltd. v. Canwest Global Communications Corp. (2003), 63 O.R. (3d) 431 (C.A.), at para. 36; Prince v. ACE Aviation Holdings Inc., 2013 ONSC 2906, 115 O.R. (3d) 721, appeal dismissed and cross-appeal allowed 2014 ONCA 285; 120 O.R. (3d) 140; Abdula v. Canadian Solar Inc., 2011 ONSC 5105, 92 B.L.R. (4th) 324, affd 2012 ONCA 211, 110 O.R. (3d) 256; Wilson; Charron v. Banque provinciale du Canada,  O.W.N. 315 (H.C.J.).