United States v. Yemec: Will the New Impeachment Defence Survive Appellate Review?

In a previous post, I wrote about the ground-breaking decision of Justice Belobaba in United States of America v. Yemec 2009 CanLII 44418 (ON S.C.) which dismissed the plaintiffs’ summary judgment motion, ostensibly on the ground of creating a a new “impeachment” defence to the enforcement of a foreign judgment: the lack of a meaningful opportunity to be heard.
On March 8th, 2010, Molloy, J. granted leave in United States of America v. Yemec, 2010 ONSC 1409 (CanLII) on the sole issue of the determination of the motions judge that the Yemec defendants had raised a triable issue as to the enforceability of the Illinois judgment. The United States sought leave to appeal from the recognition of the possibility of a new defence based on the loss of a meaningful opportunity to be heard and the finding that the defendants had demonstrated genuine issues for trial on whether the defence was met. It argued that both branches of both tests under Rule 62.02(4) were met: i.e. that there are conflicting decisions on the issue and it is desirable that leave be granted (Rule 62.02(4)(a)); and, that there is reason to doubt the correctness of the order and the appeal involves matters of general importance justifying leave (Rule 62.02(4)(b)).

At the outset, Molloy, J. expressed “ serious reservations that the new defence of the denial of a ‘meaning opportunity to be heard’, as articulated by the motions judge, can possibly suffice.” (at para. 9). Essentially, Justice Molloy disagrees with Justice Belobaba that there is any substantive difference beween the defence of denial of natural justice and the lack of a meaningful right to be heard:

“A right to be heard that is not meaningful would not comply with the traditional test for natural justice: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (S.C.C.), [1999] 2 S.C.R. 817 at para. 30 and 32. Therefore the addition of the word “meaningful” does nothing to change the nature of the test already recognized in Beals.” (at para. 10)

Molloy, J. also cites King v. Drabinsky 2008 ONCA 566 (CanLII), [2007] O.J. No. 2901 (S.C.J.), (2008), 91 O.R. (3d) 616 at para. 41 (C.A.), leave to appeal ref’d [2008] S.C.C.A. No. 418 (S.C.C.), which ruled that “the considerations raised by the appellants under the proposed new category are the same considerations as under the rubric of the natural justice defence” (at para. 11).

Is this simply a debate over judicial activism vs. judicial conservatism? It’s difficult to know, but Molloy, J. clearly opposes expanding the nature and scope of the traditional impeachment defences, stating:

“…In essence, the Yemec defendants allege that the United States tied up their assets to such an extent that they were financially unable to defend themselves in the Illinois proceeding.

[13] However, in dealing with the natural justice defence and finding it to be unavailable to the Yemev defendants, the motions judge rejected these very arguments. In fact, these defendants did retain counsel in Illinois and their counsel did defend the action there, including defending the summary judgment motion that resulted in the judgment awarded against them. They also appealed that judgment to the Circuit Court. The Yemec defendants never sought a stay of the Illinois proceedings because of what was happening in Ontario or because of the financial constraints upon them as a result of the Ontario injunctions. Neither did they ever argue in the Illinois proceedings that they had not had a meaningful opportunity to be heard as a result of the conduct of the plaintiffs.

[14] In essence what the defendants are alleging is that they did not have sufficient financial resources to properly defend the Illinois action and that the plaintiffs’ misconduct caused that impecunious financial situation. Given the fact that they did defend the Illinois action, a trial on this issue will inevitably focus on what could have been done differently if they had more money and how that would arguably have affected the result. This would require the Ontario court to completely re-litigate the Illinois action, an outcome that was recognized in Beals to be undesirable and inconsistent with comity between nations: Beals at para. 44. Further, the new defence cannot be said to be narrow in scope, which the Supreme Court of Canada said in Beals was a requirement for the recognition of any new defences: Beals at para. 41.

[15] In addition, there are in my view serious policy concerns about recognizing a defence that would amount to a finding that a person without vast financial resources is effectively denied natural justice.

[16] Accordingly, I believe that there is good reason to doubt the correctness of the motion judge’s conclusion that the facts in this case could possibly support a new defence to the enforcement of the foreign judgment based on the loss of a meaningful opportunity to be heard.”

I agree with Justice Molloy that the “audi alteram partem” defence is merely a sub-specie of the natural justice defence. Admittedly, the United States has unlimited resources, but many litigants are unable to defend themselves due to a lack of financial resources. However, I see the merit in expanding the scope of natural justice defence to remedy “scorched earth” litigation tactics that cause a defendant’s impoverishment. At paragraph 19, Molloy, J. notes:

“…There may be a remedy with respect to that conduct, either through the damages action in relation to the undertaking or, perhaps, by imposing a stay of the enforcement action on the basis of abuse of process, similar to what was done in United States of America v. Cobb, 2001 SCC 19 (CanLII), 2001 SCC 19, [2001] 1 S.C.R. 587. However, I have difficulty with the concept of tying such a remedy to the opportunity to be heard in the foreign litigation, particularly in circumstances where it could have been asserted in that litigation, but was not.”

With respect to the second branch of the test (public importance), Justice Molloy defers to a higher court to provide clarification on the availability of such a new defence which in the learned judge’s mind:

“…may serve to focus or narrow the issues, both factual and legal, that would be involved if the matter does proceed to trial.

[20] Further, this is a defence that has never been recognized by a court before. If the defence does exist, it involves a significant change in the rules for enforcement of foreign judgments and has an impact on comity between nations that goes far beyond the interests of the particular parties involved in this litigation. I am therefore of the view that this issue should be considered by a higher court before it proceeds further. In coming to that conclusion, I am mindful of the fact that these defendants are still being required to conduct expensive litigation without assets. However, there is little point in proceeding through an expensive trial only to find out at its conclusion that the “new defence” upon which it was based is not legally available.”

Is there a difference between a denial of natural justice and a denial of a meaningful opportunity to be heard? Stay tuned to find out.

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