Executive Summary: Key Legal and Evidentiary Issues

• Whether the Ontario court should recognize and enforce a Belgian money judgment against a Canadian company.

• Assessment of whether the Belgian court had proper jurisdiction under a non-exclusive forum clause in the contract.

• Evaluation of the service of the Writ of Summons and whether it complied with natural justice standards.

• Consideration of an appeal motion to introduce fresh evidence challenging service and legal representation.

• Determination of whether ineffective assistance of counsel can be a basis for appeal in a civil context.

• Analysis of the finality and legitimacy of the foreign judgment for recognition in Ontario.

Facts and procedural background

Roger Vanden Berghe NV, a Belgian company in liquidation, sold textiles to Korhani of Canada Inc., a Canadian buyer. Following the seller's liquidation, the appointed liquidator identified unpaid invoices by Korhani. As a result, legal action was commenced in Belgium under a contract that specified Belgium as a non-exclusive jurisdiction for resolving disputes.

The Writ of Summons was served on Korhani by registered mail to its business address, and receipt was acknowledged by an employee. Korhani did not respond or appear in the Belgian proceedings, which led to a final judgment in favor of the seller. The Belgian judgment demanded payment of the outstanding debt. When the Canadian buyer again failed to respond to post-judgment demands, the seller brought an application in Ontario to recognize the foreign judgment.

Korhani opposed the application and submitted an affidavit disputing the debt. The Ontario Superior Court of Justice granted the application, recognizing the Belgian judgment. Korhani appealed the decision, seeking to introduce fresh evidence regarding service of process and alleging ineffective legal representation in the original application.

Issues on appeal and outcome

On appeal, the Ontario Court of Appeal dismissed both the motion to introduce fresh evidence and the appeal itself. The court held that the new evidence failed the test established in R. v. Palmer, as it could have been presented at the application stage. It also clarified that allegations of ineffective assistance of counsel in civil cases generally do not amount to a valid ground of appeal unless exceptional circumstances exist, which were not present here.

The court affirmed that the Belgian court had jurisdiction based on the contract and that the judgment met the requirements for recognition in Ontario—it was final, for a definite sum of money, and rendered by a competent foreign court. Furthermore, the court rejected Korhani’s claim under the natural justice exception, finding no procedural unfairness in the Belgian proceedings.

Costs of $17,787.33 were awarded to the respondent, covering legal fees and disbursements. The recognition of the foreign judgment stands, and the appeal by Korhani of Canada Inc. was unsuccessful.