Court File No. CV-17-576756 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: LAYNE MORRIS, LEISL MORRIS, TABITHA SPEER in her personal capacity and as EXECUTRIX OF THE ESTATE OF CHRISTOPHER SPEER and on behalf of her minor children, T.S AND T.S. Applicants and OMAR AHMED KHADR Respondent APPLICATION UNDER Rule 14.05(3)(g) and (h) of the Rules of Civil Procedure APPLICANTS’ FACTUM Motion returnable July 13, 2017 July 10, 2017 KAGAN SHASTRI LLP Lawyers 188 Avenue Road Toronto ON M5R 2J1 David Winer (39330D) P. (416) 368-2100 ext. 225 F. (416) 324-4202 E. dwiner@ksllp.ca Lawyers for the Applicants 2 TO: LIBERTY LAW 300 MacLean Block 10110 – 107 Street Edmonton, AB T5J 1J4 Nathan Whitling T: 780-421-4766 F: 780-429-0346 E: whitling@libertylaw.ca Lawyers for the Respondent Court File No. CV-17-576756 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: LAYNE MORRIS, LEISL MORRIS, TABITHA SPEER in her personal capacity and as EXECUTRIX OF THE ESTATE OF CHRISTOPHER SPEER and on behalf of her minor children, T.S AND T.S. Applicants and OMAR AHMED KHADR Respondent APPLICATION UNDER Rule 14.05(3)(g) and (h) of the Rules of Civil Procedure APPLICANTS’ FACTUM Motion returnable July 13, 2017 PART I - INTRODUCTION 1. The Applicants seek urgent, interim, interlocutory, relief to preserve the Settlement Funds1 pending the determination of the underlying Application. 2. The Applicants obtained judgment against the Respondent in the U.S. District Court for the District of Utah and have brought this Application to recognize and enforce the U.S. Judgment in Ontario. 1 as defined below 2 3. The Respondent, in other litigation2, sued Her Majesty the Queen in the Right of Canada, seeking approximately $20 million in damages. The Respondent has settled his case with the government and it has been reported that the government has paid to the Respondent the sum of $10.5 million (the “Settlement Funds”). For the purposes of this factum the term Settlement Funds shall also include any property acquired with the Settlement Funds. 4. It has been reported that upon receipt of the Settlement Funds the Respondent immediately took steps to ensure that the Settlement Funds were “…legally sheltered to prevent Ms. Speer’s lawyers from gaining access. “3 5. In order to preserve the Settlement Funds for possible execution pending the adjudication of the Application to domesticate the U.S. Judgment, the Applicants seek: (a) an interim Order, pending disposition of the within Application to recognize and enforce the U.S. Judgment, freezing the Settlement Funds or proceeds thereof or property acquired thereby, whether in the hands of the Respondent, or anyone else; (b) in furtherance of sub-paragraph (a) an Order directing and requiring the Respondent to forthwith provide an accounting of the Settlement Funds, and the current location of all such funds, or property acquired thereby; Khadr v. Canada et al – Court File No. T-536-04 Globe and Mail, July 7, 2017: “Federal Government Officially Apologizes to Omar Khadr, by Robert Fife and Jeff Gray, Affidavit of Matthew McCune sworn July 10, 2017 (“McCune Affidavit”), Tab 3, Motion Record at Exhibit “H” 2 3 3 (c) an Order for the appointment of an interim Receiver pursuant to the provisions of s.101 of the Courts of Justice Act and Rule 41 of the Rules of Civil Procedure for the purpose of securing, receiving and holding the Settlement Funds (and any property acquired thereby) pending disposition of the within Application to recognize and enforce the U.S. Judgment; 6. In order to minimize any potential inconvenience, the Applicants ask that the Application be heard on an expedited basis. PART II - SUMMARY OF FACTS The Applicants 7. The Applicant, Layne Morris (“SFC Morris”) was, at times material to this Application, a Sergeant First Class in the U.S. Armed Forces. He is retired. Leisl Morris is his wife4. 8. Christopher Speer (“SFC Speer”), deceased, was a Sergeant First Class and combat medic in the U.S. Armed Forces. The Applicant, Tabitha Speer (“Ms. Speer”) is the widow of SFC Speer. Ms. Speer is the Executrix of the Estate of SFC Speer and the guardian of her then minor children, T.S. and T. S5. Affidavit of Donald J. Winder sworn July 6, 2017 (“Winder Affidavit”), Tab 2, Applicant’s Motion Record, ¶ 3 5 ibid at ¶¶ 5-6 4 4 9. Christopher Speer was a medic. His role was to save people on the battlefield, (both allied and enemies), including the injured Omar Khadr.6 10. Christopher left a widow and two young children. After sustaining massive injuries, he was airlifted to an army hospital in Germany. His wife, Tabitha, attended at his side there until he perished: “I remained by Christopher’s side day by day rubbing his feet, kissing his cheeks and talking to him … At times, it appeared Christopher was puckering his lips to kiss me. I know that Christopher knew I was there by his side.7 He knew that I needed to see him one last time before he left this earth.” 11. Christopher’s daughter, , was 3 years old when he was killed.8 His son, , was just shy of his first birthday when Christopher was killed.9 12. Prior to his deployment to Afghanistan Christopher told his kids that he loved them more than anything. He told them that he had to go away to work and may not return.10 13. When Tabitha found out on July 27, 2002 that Christopher had been injured she was sick to her stomach and knew that her kids’ lives would never be the same.11 Exhibit “S” McCune Affidavit Exhibit “R” Winder Affidavit – motion for default judgment 8 Exhibit “R” Winder Affidavit – containing the Affidavit of Tabitha Speer (¶11), sworn November 11, 2005 - which is akin to a victim impact statement. 9 ibid at ¶12 10 ibid at ¶15 11 ibid at ¶18 6 7 5 14. Tabitha stated in her affidavit as follows: In efforts to provide medical service to a wounded anti-American fighter, a grenade had been thrown at Christopher by the very person he was attempting to help. The grenade had exploded sending shrapnel into his temple through the front of his skull, ricocheting off the rear of his skull and lodging into his brain. I knew that my husband would never be the same.”12 15. When Christopher died, Tabitha stated that it was the worst day of her life and part of her died with him.13 16. Doctors were able to harvest 5 organs from Christopher to help other people.14 17. Tabitha further stated: Surviving without Christopher has been utter hell. “ will never have the privilege of being walked down the aisle on her wedding day by her father … was only none months old. will never know his father, other than through stories or pictures.”15 The Respondent 18. The Respondent, Omar Ahmed Khadr (“Khadr”), is an individual who resides in the Province of Alberta. Khadr has been living with his attorney, Dennis Edney, Q.C. since his release from the Bowden Correctional Facility.16 ibid at ¶20 ibid at ¶21 14 ibid at ¶24 15 ibid at ¶30 16 Ibid at ¶ 7 12 13 6 19. Khadr’s father, Ahmad Khadr, was a long-time member of Al Qaeda.17 Ahmad was installed in several high ranking Al Qaeda positions and provided substantial financial support and personnel assistance to help the group achieve international terrorism objectives. 20. Omar Khadr “heeded his father’s call” and joined Al Qaeda.18 Basis of Cause of Action 21. The Applicants established in the Utah Action19, inter alia, that: (i) on July 27, 2002, while fighting with al Qaeda in Afghanistan, Khadr caused an explosion which hit SFC Speer, who later died from the massive injuries that he sustained; and (ii) SFC Morris was permanently injured from the same firefight, either directly through Khadr’s actions, or through his aiding and abetting the firefight.20 The U.S. Complaint 22. On May 23, 2014, the Applicants commenced a Complaint in the United States District Court for the District of Utah bearing action number 2:14-cv-00391–DBP (the Morris v. Khadr forming part of Exhibit “R” to the Winder Affidavit 415 F Supp 2d 1323 at §1 ibid at § 1 19 Defined below 20 ibid at ¶ 8. The allegations contained in the Complaint were deemed to be admitted when Khadr was noted in default in Utah. See Smith v. Islamic Emirate of Afghanistan 262 F.Supp.2d 217 (S.D.N.Y. 2003). However, there is detailed evidence attached to the Complaint and attached to the Motion for Default Judgment, which independently substantiated such allegations. 17 18 7 “Utah Action”) for damages for, inter alia, the wrongful death of SFC Speer and the injuries sustained by SFC Morris.21 Khadr was Personally Served in Accordance with Hague Convention 23. The Complaint and Summons were served personally on Khadr on June 23, 2014 at the Bowden Institution in Innisfail, Alberta, pursuant to the provisions of the Hague Convention through the assistance of the Solicitor General’s Office in Alberta.22 Khadr’s Lawyer Notified of Complaint as a Courtesy 24. As a courtesy, on July 3, 2014, the Applicants’ U.S. lawyers wrote to Mr. Dennis Edney, Q.C., (who was known to act for Khadr) to advise that the Complaint had been served on Khadr.23 25. Minor amendments were made to the Complaint on August 8, 2014.24 26. On August 8, 2014, a copy of the Amended Complaint was sent to Mr. Edney. Applicants’ U.S. counsel advised Mr. Edney “…[w]e look forward to working with you and whomever you select as your local counsel in this matter.” 25 ibid at ¶ 9 and Exhibit “A” thereto ibid at ¶¶ 11-15 and Exhibits “C” – “G” thereto 23 ibid at ¶ 16 and Exhibit “H” thereto 24 ibid at ¶ 18 and Exhibit “J” thereto 25 ibid at ¶ 20 and Exhibit “K” thereto 21 22 8 27. The amended Complaint was also sent as a courtesy to two separate Utah lawyers (which the Applicants’ U.S. lawyers had been advised, were consulted by Mr. Edney to potentially act for Khadr).26 28. Khadr failed to deliver a defence or have an attorney enter an appearance.27 Khadr Requests Extension to Defend Complaint 29. Khadr’s prospective legal counsel contacted the Applicants’ U.S. lawyers requesting an extension to August 1, 2014 and then requested a further extension to September 8, 2014.28 30. Nevertheless, despite these extensions, Khadr still did not deliver a defence. On September 11, 2014, as no defence had been received from Mr. Edney or anyone else on behalf of Khadr, the Applicants’ U.S. lawyers filed with the U.S. District Court (for the District of Utah) a Declaration in Support of a Motion for Default.29 This is equivalent to noting default in Ontario. Noting in Default 31. A Motion for Default was submitted to the Court on September 11, 2014.30 ibid at ¶ 22-23 and Exhibits “M” and “N” thereto ibid at ¶ 24 28 ibid at ¶ 25 and Exhibit “O” thereto 29 ibid at ¶ 24 and Exhibit “O” thereto 30 ibid at ¶ 26 and Exhibit “P” thereto 26 27 9 32. A copy of the Motion for Default was mailed to Khadr on September 17, 2014 at the Bowden Institution. Neither Khadr, nor anyone on his behalf, has ever moved to set aside the noting in default.31 33. A Default Certificate was entered by the Court on September 23, 2014.32 Motion for Default Judgment served on both Khadr and his Counsel 34. The Applicants did not take further steps against Khadr in the Utah Action for about seven (7) months. On April 24, 2015, the Applicants submitted a Motion for Default Judgment and a Request for Attorney’s Fees and Costs. Copies of the same were sent by mail separately to both Mr. Edney and Khadr. There was no response to this motion from either Mr. Edney or Khadr.33 35. A request for attorney’s fees and costs filed in support of the motion for default judgment was also mailed separately to both Mr. Edney and Khadr. 36. Khadr’s lawyers were clearly aware of the Utah Action and the fact that Utah counsel intended to move for default judgment. A report from the CBC dated May 17, 2015 (i.e. before judgment was signed) stated, in part, as follows: “Khadr's lawyer, Nate Whitling, called it "unfortunate" his client was unable to retain a lawyer in Utah to defend against a suit he said has no legal merit.”34 ibid at ¶ 27 and Exhibit “Q” thereto ibid at ¶ 28 and Exhibit “R” thereto 33 ibid at ¶¶ 29-30 and Exhibit “S” thereto 34 McCune Affidavit at Exhibit “J” thereto 31 32 10 37. Khadr and his counsel were aware of the US action. They had the opportunity to consult US counsel and it appears that they did so. They sought and obtained extensions, but still did not file a defence. They took no steps to oppose or to set aside the noting in default. It appears that a conscious decision was made not to respond to the Utah action. Default Judgment 38. The Order for Default Judgment was signed by Judge Campbell on June 8, 2015.35 The Within Application 39. This Application to enforce the U.S. Judgment in Ontario was issued on June 8, 2017. Settlement in Khadr v. Canada 40. Late in the evening on Monday July 3, 2017, media reports began to circulate that the Canadian Government had settled the law suit brought against it by Khadr.36 41. The initial media reports indicated that: Khadr’s action has settled; that Mr. Edney appeared to be acting for Khadr in the litigation and the resulting settlement; that the federal government will issue an apology to Khadr; and that the settlement sum is reportedly CDN $10.5MM (the “Settlement Funds”).37 ibid at ¶ 33 and Exhibit “V” thereto ibid at ¶ 38 and see also the McCune Affidavit, Tab 3, Motion Record at Exhibit “F” 37 ibid 35 36 11 42. Immediately upon receipt of this information, Applicant’s counsel wrote to Mr. Edney and Mr. Brucker (senior counsel at the Department of Justice) early in the morning on July 4, 2017.38 43. In the July 4, 2017, letter to Mr. Edney, counsel advised in part as follows: We understand that Mr. Khadr has recently settled his claim with the federal government. Therefore, my clients will wish to have this Application be heard as quickly as possible. If it is not possible for the Application to be heard and adjudicated prior to the payment of settlement funds, we may seek to restrain the federal government from making payment until the Application can be heard. Please advise whether you will be retained to act for Mr. Khadr in the above noted Application and whether you have instructions to accept service of the Notice of Application and supporting materials on behalf of your client. 39 44. There was no response to this letter.40 45. In the letter to Mr. Brucker at the DOJ, counsel advised, in part as follows: My clients caused a Notice of Application to be issued from the Ontario Superior Court of Justice on June 8, 2017, bearing the above noted Court File No., wherein the Applicants seek recognition and enforcement of a final judgment issued by the U.S. District Court for the District of Utah on June 8, 2015. Copies of the Notice of Application and US judgment are attached. I have discerned from a QuickLaw search that you acted as counsel for Her Majesty the Queen in the Right of Canada in a case in which Omar Khadr is plaintiff bearing docket number T-536-04. Do you still have carriage of Winder Affidavit at ¶ 42 and Exhibit “W” Winder Affidavit , Exhibit “W” 40 ibid at ¶43 38 39 12 the matter for the government? If not, can you please direct me to the person who does have carriage? 46. The Department of Justice advised that the settlement process is confidential and that they could not answer whether the settlement was finalized and whether funds have been paid to Khadr.41 47. Applicant’s counsel wrote to Mr. Edney to provide a copy of the Notice of Application and to inquire whether Khadr would consent to an Order for payment of the Settlement Funds into Court. There has been no response.42 48. Aside from the Settlement Funds, the Applicants are not aware of any other assets which the Respondent may have.43 As noted in Mr. Winer’s letter to Mr. Edney, the Applicants have inquired whether Mr. Khadr would be prepared to voluntarily pay the Settlement Funds into Court. There has been no response to that request.44 49. The Applicants seek the appointment of Rahn Dodick, as an interim Receiver. Mr. Dodick’s qualifications permit the appointment. He has been appointed as Trustee and Receiver by the Court on numerous occasions.45 PART III - STATEMENT OF ISSUES, LAW & AUTHORITIES 50. The Applicants state that the following substantive issues require deliberation: ibid at ¶ 41 ibid at Exhibit “W” 43 Winder Affidavit at ¶ 44 44 ibid at ¶¶ 42 and 43 45 Exhibit “X” Winder Affidavit 41 42 13 (a) Should the Court grant an interim Order, freezing the Settlement Funds or proceeds thereof or property acquired thereby, whether in the hands of the Respondent, or anyone else, pending disposition of the within Application to recognize and enforce the U.S. Judgment? (b) Should the Court grant an Order and directing and requiring the Respondent to forthwith provide an accounting of the Settlement Funds, and the current location of all such funds, or property acquired thereby? (c) Should the Court grant an Order for the appointment of an interim, Receiver pursuant to the provisions of s.101 of the Courts of Justice Act and Rule 41 of the Rules of Civil Procedure for the purpose of securing, receiving and holding the Settlement Funds (and any property acquired thereby) pending disposition of the within Application to recognize and enforce the U.S. Judgment? 14 A. PRELIMINARY ISSUE 1 - SERVICE AND JURISDICTION 51. Through his lawyer, Khadr has taken the position that service of the Notice of Application for this proceeding cannot be made, ex juris, without leave of the Court. However, Rule 17.02(m) of the Rules of Civil Procedure specifically authorizes service of an originating process outside of Ontario without leave when the proceeding consists of a claim on a judgment of a court outside of Ontario.46 Therefore, leave is not required for service ex juris. 52. Given Mr. Whitling’s advice that he acts for Mr. Khadr and will accept service if leave is granted to permit service ex juris47, the Applicants seek an Order validating service of the Notice of Application and the within motion materials on Mr. Whitling pursuant to Rules 16.04 and 16.08 of the Rules of Civil Procedure. 53. Khadr’s lawyers have advised that Khadr will not attorn or submit to the jurisdiction of the Courts of Ontario.48 54. In the recent decision of the Supreme Court of Canada in Chevron Corp. v. Yaiguaje,49 the Court held that a proceeding to enforce a foreign judgment can be brought in any province, at the applicants’ option, holding (in part) as follows: The purposes that underlie recognition and enforcement proceedings simply do not require proof of a real and substantial connection between the dispute and Ontario, whether for constitutional reasons or otherwise. This was confirmed by the Supreme Court of Canada in Chevron, infra, at ¶ 56 McCune Affidavit at Exhibit “D” 48 ibid at Exhibit “D” 49 [2015] SCJ No. 42 at ¶50 46 47 15 B. PRELIMINARY ISSUE 2 - AMENDMENT TO PLEADING 55. The Applicants seek to amend the Notice of Application in the form attached as Schedule “A” to the Notice of Motion. 56. Rule 26 of the Rules of Civil Procedure provide that the Court shall grant leave to amend unless prejudice would result that cannot be compensated for by costs or an adjournment. 57. It is submitted that there is no prejudice from the amendments sought. C. FREEZING ORDER 58. The authority and jurisdiction of the Court to grant injunctive relief is set out in s. 101 of the Courts of Justice Act “…where it appears to a Judge of the Court to be just or convenient to do so.” 59. In In SFC, Divisional Court recently held that factors set out by the Courts with respect to the test to be applied in granting relief pursuant to s. 101 of the Courts of Justice Act, must evolve as circumstances merit. 60. In SFC Litigation Trust v. Chan, the Divisional Court held that the Court’s power to grant an injunction emanates from s. 101 and “…when an equitable remedy is sought the 16 court ought to consider the guidelines set out in Chitel, but ultimately the court must consider what is just or convenient.”50 (emphasis added) 61. The traditional test for granting an injunction is set out in RJR MacDonald Inc. v. Canada51: (1) whether there is serious question to be tried; (2) whether the applicant will suffer irreparable harm (that cannot be compensated for by an award of damages) if the relief sought is not granted; and (3) 62. i. 63. whether on the balance of convenience the injunction should be granted. It is submitted that the Applicants meet this test. Serious Question to be Tried There is a serious question to be tried. The threshold is low. As long as the case is not frivolous or vexatious, this threshold will be met.52 64. If the more stringent standard of a strong prima facie case is imposed, however, the mere existence of a foreign judgment is evidence of a strong prima facie case.53 SFC Litigation Trust v. Chan [2017] O.J. No. 1540 (Div Ct) at ¶27 and ¶ 36 [1994] S.C.J. No. 17 (S.C.C.) 52 RJR at ¶ 49 53 NEC Corp. v. Steintron International Electronics Ltd. [1985] O.J. No. 2642 (HCJ) at ¶11 50 51 17 a. Enforcement of Foreign Judgments 65. In NEC Corp. v. Steintron International Electronics Ltd. the Court held that a foreign judgment is evidence of a strong prima facie case. However, even if this inference were not applicable, the evidence overwhelmingly supports the proposition that the Applicants have a strong prima facie case for the following reasons. 66. The Supreme Court of Canada indicated in Chevron, supra, as follows54: Canadian law recognizes that the purpose of an action to recognize and enforce a foreign judgment is to allow a pre-existing obligation to be fulfilled; that is, to ensure that a debt already owed by the defendant is paid. As Pitel and Rafferty explain, such an action "is based not on the original claim the plaintiff had pursued against the defendant but rather on the obligation created by the foreign judgment": p. 159; see also P. M. Perell and J. W. Morden, The Law of Civil Procedure in Ontario (2nd ed. 2014), at para11.177. The following comment made by McLachlin C.J. in Pro Swing (although in dissent) also reflects this logic: "Barring exceptional concerns, a court's focus when enforcing a foreign judgment is not on the substantive and procedural law on which the judgment is based, but instead on the obligation created by the judgment itself": para. 77. Important consequences flow from this observation. First, the purpose of an action for recognition and enforcement is not to evaluate the underlying claim that gave rise to the original dispute, but rather to assist in enforcing an already-adjudicated obligation. In other words, the enforcing court's role is not one of substance, but is instead one of facilitation: Pro Swing, at para. 11. The court merely offers an enforcement mechanism to facilitate the collection of a debt within the jurisdiction. This entails that the enforcing court does not exercise jurisdiction in the same way as it does in actions at first instance. In a first instance case like Van Breda, the focus is on whether the court has jurisdiction to determine the merits of a substantive legal claim; in a recognition and enforcement case, the court does not create a new substantive obligation, but instead assists with the fulfillment of an existing one. (all emphasis added) 54 Chevron, supra, at ¶¶43-44 18 67. It is a pre-condition to enforcement of a judgment that the foreign court properly took jurisdiction.55 68. In this case the evidence unequivocally demonstrates that the US District Court for the District of Utah properly assumed jurisdiction. 56 69. Once it has been determined that the foreign court properly assumed jurisdiction, the enforcing Court must then examine the potential defences to the enforcement of the judgment: as stated in Beals57: “…the defences of fraud, public policy and lack of natural justice … still pertain. This Court has to consider whether those defences, when applied internationally, are able to strike the balance required by comity, the balance between order and fairness as well as the real and substantial connection, in respect of enforcing default judgments obtained in foreign courts.” Beals v. Saldanha [2003] SCJ No. 77, supra, at ¶ 37 Winder Affidavit at ¶34. See also paragraph 9 and 10 of the Complaint. 18 U.S.C. §2333(a) provides: (a)Action And Jurisdiction— Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees. 18 U.S.C. §2334(a) provides: (a)General Venue—Any civil action under section 2333 of this title against any person may be instituted in the district court of the United States for any district where any plaintiff resides or where any defendant resides or is served, or has an agent. Process in such a civil action may be served in any district where the defendant resides, is found, or has an agent See also ¶ 86 in Tracy v. Iran, infra 57 Beals, supra, at ¶ 40 55 56 19 b. Due Process 70. In this case, there is no evidence of fraud nor a denial of natural justice. The respondent was served personally with the Complaint. His lawyer was sent a courtesy copy. Lawyers consulted on behalf of the Respondent in Utah were also sent courtesy copies of the Complaint. When the Respondent was noted in default, he was mailed a copy of the default notice. Seven (7) months passed before the Applicants moved for default judgment. Prior to moving for default judgment, the motion material was mailed separately to both Mr. Edney and Mr. Khadr. Mr. Whitling commented in the media, inferring, that he was aware that the Applicants were moving for judgment and commented that it was “unfortunate” that Khadr was unable to retain a lawyer in Utah. No request was ever made to set aside the noting in default or the default judgment. 58 c. Public Policy 71. The U.S. Judgment does not offend public policy. In 2012, the Federal Government passed the Justice for Victims of Terrorism Act S.C. 2012 c.1 s.2. (“JVTA”). 72. Part of the pre-amble to JVTA states as follows: And whereas Parliament considers that it is in the public interest to enable plaintiffs to bring lawsuits against terrorists and their supporters, which will have the effect of impairing the functioning of terrorist groups in order to deter and prevent acts of terrorism against Canada and Canadians 58 McCune Affidavit at Exhibit “J” 20 73. Section 3 of the JVTA clearly sets out its purpose: The purpose of this Act is to deter terrorism by establishing a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters. 74. The Ontario Court of Appeal recently considered the Application of the JVTA in Tracy v. Iran.59 The Court noted that s.4(5) of the JVTA provides mandatory language as follows: A court of competent jurisdiction must recognize a judgment of a foreign court that, in addition to meeting the criteria under Canadian law for being recognized in Canada, is in favour of a person that has suffered loss or damage referred to in subsection (1).... (emphasis added) 75. The JVTA creates certain presumptions: (2.1) In an action under subsection (1), the defendant is presumed to have committed the act or omission that resulted in the loss or damage to the plaintiff if the court finds that 76. • (a) a listed entity caused or contributed to the loss or damage by committing an act or omission that is, or had it been committed in Canada would be, punishable under Part II.1 of the Criminal Code; and • (b) the defendant  —  for the benefit of or otherwise in relation to the listed entity referred to in paragraph (a)  —  committed an act or omission that is, or had it been committed in Canada would be, punishable under any of sections A “listed entity” has the same meaning as under s. 83.01 of the Criminal Code. Al Qaida is a listed entity. 59 2017 ONCA 549 21 77. The Applicants alleged in the complaint that Khadr was a member of Al Qaeda. That allegation was deemed to be admitted by virtue of the noting in default. Moreover, the U.S. District Court in the case of Morris v. Ahmad Sa’id Khadr60 (Omar Khadr’s father) also specifically found that Ahmad Khadr was a high ranking Al Qaeda member; that Omar Khadr “heeded his father’s call and joined Al Qaeda”; and that Omar Khadr participated in the July 27 attack which killed Mr. Speer and wounded Mr. Morris. 61 78. Therefore, by virtue of the previous judicial findings and deemed admissions, the presumptions in s. 2.1 of the JVTA are engaged. 79. In Tracy, Iran attempted to argue that there was no proof beyond a reasonable doubt of its commission of an offence listed in the JVTA. The Court of Appeal dismissed that argument as follows: Iran submits that the respondents had to prove beyond a reasonable doubt specific criminal acts committed by the appellants under Part II.1 of the Criminal Code and that the appellants cannot rely on the findings of fact made by the U.S. courts to establish liability under the JVTA. I accept the analysis of the motion judge on this point. Parliament did not intend to require plaintiffs to prove the commission of a specific criminal offence under this part of the Criminal Code. Rather, the requirement under s. 4(1)(b) of the JVTA was meant to define the type of conduct that constitutes an act of terrorism under the JVTA.62 415 F.Supp 2d 1323 ibid at §1 62 Tracy, supra, at ¶62 -63 60 61 22 80. The Court of Appeal held that: Reading in a criminal standard of proof into an element of the cause of action under the JVTA defeats the clear legislative purpose of the statute.63 81. The Court of Appeal further held that: The role of a court in considering whether the criteria under s. 4(5) of the JVTA are met does not extend to reconsidering or reviewing the factual findings underlying the foreign judgments: Kuwait Airways, at para. 23; and Chevron, at para. 44. Instead, the court’s function in the respondents’ actions was to consider whether the requirements of s. 4(5) of the JVTA were met within the framework of the applicable Canadian law on the basis of the findings of fact made by the American courts. It is also appropriate to take into account Iran’s deemed admissions, having been noted in default and therefore deemed to admit the allegations in the statements of claim. Any argument that the court must look behind the foreign courts’ factual findings and conduct its own inquiry is contrary to the plain language of the JVTA and the jurisprudence on the enforcement of foreign judgements64 82. In Tracy, Iran also argued that the U.S. Judgment should not be enforced in Ontario because it offended public policy. The Court of Appeal dismissed this argument, holding, in part, as follows: I would not give effect to any of these arguments. Before considering them, I note that the defence of public policy has a high threshold. To be declared unenforceable on the ground of public policy, enforcement of the judgment must violate “conceptions of essential justice and morality”65 ….. Tracy, supra at ¶ 65 Tracy, supra at ¶ 66 65 Tracy, supra at ¶ 89 63 64 23 The terrorist attacks out of which the respondents’ U.S. judgements arise are repugnant to civilized society. The fact that a foreign government would engage in the sponsorship of such atrocities is chilling. Both the JVTA and the FSIA are designed to use the countries’ respective civil justice systems to fight the state sponsorship of terrorism. There is nothing offensive about using peaceful legislative means to combat terrorism66 83. Iran also argued that the large quantum of the judgment in its case (totalling $1.7 billion) was against public policy. Again, the Court of Appeal dismissed this argument and held, in part, as follows: With respect to Iran’s fifth argument, the quantum of the judgments, and specifically the American courts’ application of punitive damages law, cannot ground a defence of public policy. The Supreme Court of Canada expressly rejected the position that the amount of a foreign judgment alone could render its recognition and enforcement contrary to Canadian public policy in Beals, at para. 77. 84. Recognizing and enforcing large damage awards against Iran is consistent with the public policy animating the JVTA to “enable plaintiffs to bring lawsuits against terrorist and their supporters,” The fact that the American courts award damages in excess of the cap for non-pecuniary damages recognized in Canada does not offend any basic conception of morality. To the contrary, awarding damages that may have a deterrent effect is a sensible and measured response to the state sponsorship of terrorism and is entirely consistent with Canadian legal morals.67 66 67 Tracy, supra ¶92 Tracy, supra ¶ 95-96 24 ii. 85. Irreparable Harm If the Settlement Funds are not frozen or otherwise preserved, there is a real risk that the Respondent will dissipate the funds or otherwise deal with the funds in a manner that renders it impossible for the Applicants to enforce judgment. This is evident for the following reasons: (a) The Applicants have twice requested of Mr. Edney whether Khadr is prepared to pay the Settlement Funds into court, to which there has been no response; (b) The Applicants have additionally requested of Mr. Whitling in part as follows: Is your client prepared to have these assets preserved pending the hearing of our application on its merits? If so that may obviate the need for an urgent motion.68 There was no response to this request. (c) Various media (as noted above) have reported that the Settlement Funds were immediately negotiated and “legally sheltered” specifically designed to frustrate the ability of the Applicants from executing upon the same;69 McCune Affidavit at Exhibit “D” Globe and Mail, July 7, 2017: “Federal Government Officially Apologizes to Omar Khadr, by Robert Fife and Jeff Gray, McCune Affidavit, Exhibits “H” and “G”. Although this report is hearsay, it is the best evidence available. Both the DOJ and Khadr’s counsel have failed or refused to provide any details about the payment. 68 69 25 (d) The payment of the Settlement Funds was made on July 5, 2017, after notice of the within Application (and intention to freeze funds) was specifically brought to the attention of Khadr’s lawyers and the government. Notice was given July 4, 2017. Various media reported that the payment was specifically expedited in light of this motion to ensure that the funds reached Khadr before they could be executed upon;70 (e) Some of Khadr’s family continue to reside in the GTA.71 It has been widely reported that family members have previously expressed support for Al Qaeda or violent extremism. While Khadr, himself, has expressed regret for his past conduct, his mother and sister have not publically expressed regret. His sister Zaynab is reportedly currently detained or imprisoned in Turkey;72 (f) In an interview on CBC News on Friday July 7, 2017, Khadr did not deny his past conduct. He indicated that as a young man he did not think about the morality of his choices. In the same interview, he advised that he remains close with this family. 73 CBS 60 Minutes aired a report in 2007 National Post, July 8, 2017, Jim Bronnskill, McCune Affidavit at Exhibit “I” Exhibits “K”, “M”, “N” and “O”, McCune Affidavit 72 Exhibit “L” McCune Affidavit 73 Exhibit “Q” McCune Affidavit 70 71 26 which showed what “appears to be Omar Khadr helping put together a firing device.”74; and (g) One may reasonably infer that Khadr may provide some of the Settlement Funds to his family members, who appear to be unrepentant supporters of violent extremists. 86. If the assets are not frozen pending the hearing of the Application, there may be no assets left in Canada upon which the Applicants may execute. The Applicants have repeatedly requested assurances that the assets will not be dissipated. There has been no response. The media reports indicate that steps have been taken to “legally shelter” the assets from the reach of creditors. The Applicants are not aware of any other assets owned by Khadr in Canada. Impecuniosity (such that it would render a judgment incapable of being enforced) is a relevant consideration.75 iii. Balance of Convenience 87. The balance of convenience favours freezing the Settlement Funds on an interim basis. This branch of the test requires the Court to weigh which of the parties will suffer greater harm from the granting or refusal to grant the injunction.76 The Applicants will clearly suffer greater harm if the freezing order is not granted. The Applicants request an expedited hearing so as to minimize any potential inconvenience. Exhibit “R” McCune Affidavit RJR at ¶ 59 76 RJR at ¶ 62 74 75 27 D. APPOINTMENT OF INTERIM RECEIVER 88. Section 101 of the Courts of Justice Act provides that a receiver may be appointed by an interlocutory order, “…where it appears to a judge of the court to be just or convenience to do so.” 89. Rule 41 provides that the appointment of a receiver under s. 101 of the Court of Justice Act may be obtained on motion to a judge in a pending or intended proceeding. 90. The appointment of a Receiver in this case may be necessary in order to carry out the intent and effect of the Order. 91. The governing test for the appointment of a Receiver is whether it is just and convenient having regard to the nature of the property and the rights of the parties in relation thereto.77 92. Ontario jurisprudence recognizes that a Receiver may be appointed to enforce an order for the payment of money where special circumstances exist which would render the normal methods of execution ineffective or impractical or where certain property of the debtor might not be exigible for execution.78 93. Under section 101 of the Courts of Justice Act, the court has the jurisdiction to grant broad powers to the Receiver given the circumstances of the case.79 Third Generation Realty Ltd. v. Twigg Holdings Ltd. [1991] O.J. No. 2453 (Ont.G.D.) at page 6 Weig v. Weig 2012 ONSC 7262 at ¶18 79 ibid at ¶18 77 78 28 94. The Applicants state that in this particular case, it is both just and convenient for the appointment of a Receiver. 95. Special circumstances that warrant the appointment of a Receiver include cases involving contrived or elaborate business structures, or where large amounts of money are at stake that may not be realized without the appointment.80 96. The Court may also appoint an equitable receiver in a situation where the debtor has arranged his or her affairs in such a way that there is an appearance that the assets have been sheltered and that there is more than a substantial impediment in the way of ordinary methods of recovery.81 97. In this case the media reports indicate that the Settlement Funds were immediately negotiated and “legally sheltered” to frustrate or hinder execution. The Applicants’ Canadian counsel has sought numerous assurances that the Settlement Funds will not be dissipated. There has been no response. The Applicants’ U.S. attorneys have extended an olive branch82 on July 7, 2017, to which there has been no reply. 98. The appointment of a Receiver is just because as the Supreme Court of Canada noted in Google,83 the decision to grant an interlocutory injunction is discretionary and …. interlocutory injunctions are equitable remedies that seek to ensure that the subject ibid at ¶20 ibid at ¶21 82 McCune Affidavit at Exhibit “A” 83 [2017] S.C.J. No. 34 at headnote and at ¶¶ 1 and 24 80 81 29 matter of the litigation will be preserved so that effective relief will be available when the case is ultimately heard on the merits …ultimately, the question is whether granting the injunction is just and equitable in the circumstances of the case. (emphasis added) 99. An Order freezing the settlement funds (together with an accounting and the appointment of a Receiver if necessary) in the unusual facts of this case is not an intrusive remedy and is in keeping with the spirit of the Supreme Court’s dictum in Google, in that it may aid in preserving the subject matter of the litigation until the matter can be heard on its merits. 100. The freezing order and the appointment of a Receiver will be limited to receiving and holding only the Settlement Funds and any property acquired thereby. It will be for a limited time. The Receiver will place such funds in secure interest bearing accounts. The Applicants seek an expedited hearing for the Application so as so minimize any potential inconvenience 101. Although Weig was decided in the context of an execution creditor, it is submitted that the Applicants ought to be treated no differently from an execution creditor on an interim basis, on the facts of this case, for the following reasons: a) In Chevron, the Supreme Court noted: … the purpose of an action for recognition and enforcement is not to evaluate the underlying claim that gave rise to the original dispute, but rather to assist in enforcing an already-adjudicated obligation. In other words, the enforcing court's role is not one of substance, but is instead one of facilitation: Pro Swing, at para. 11. The court merely offers an enforcement mechanism to facilitate the collection of a debt within the jurisdiction. This entails that the enforcing court does not exercise jurisdiction in the same way as it does in actions at 30 first instance. In a first instance case like Van Breda, the focus is on whether the court has jurisdiction to determine the merits of a substantive legal claim; in a recognition and enforcement case, the court does not create a new substantive obligation, but instead assists with the fulfillment of an existing one. 84 (all emphasis added) b) The “obligation” (i.e. the U.S. Judgment) was adjudicated more than 2 years ago. Despite knowledge of the default judgment the Respondent never sought to set it aside or appeal it; Section 4(5) of the Justice for Victims of Terrorism Act, S.C. 2012 c.1 s.2. c) (“JVTA”), provides any court of competent jurisdiction “must” recognize a judgment of a foreign court that, in addition to meeting the criteria under Canadian law for being recognized in Canada, is in favour of a person that has suffered loss or damage referred to in subsection (1). As discussed below, the Court of Appeal recently considered this legislation in the context of the enforcement of a foreign judgment and noted that Parliament had stated a clear legislative intention to promote the enforcement of judgments of this nature; d) There is clear authority for the proposition that an interim injunction may be granted so that assets are available for execution in a foreign judgment.85 E. DISPENSE WITH UNDERTAKING AS TO DAMAGES 102. Pursuant to Rule 40.03, the Applicants request that the Court “order otherwise” and dispense with the requirement of an undertaking as to damages. This is not a case where a Receiver will take over the affairs of a business. It is not a case where the Respondent will suffer any pecuniary damages if the Order sought is granted. All of the Settlement Funds will be held pending the hearing of the Application. If the Applicants are unsuccessful, then the Receiver will return such funds (less authorized expenses), 84 85 Chevron, supra, at ¶¶43-44 Mishkin v. Roddy DiPrima Ltd. [1996] BCJ No. 2660 at ¶ 7 31 together with any earned interest, to the Respondent. As such, it is respectfully submitted that this is an appropriate case to “order otherwise.” PART IV - ORDER REQUESTED 103. The Applicants seek the following Orders: a) An Order validating service of the Notice of Application and supporting materials on Nathan Whitling pursuant to Rule 16.08 of the Rules of Civil Procedure; b) An Order granting leave to amend the Notice of Application in the form appended as Schedule “A” to the Notice of Motion; c) An Order dispensing with further service of the Amended Notice of Application upon the Respondent; d) an interim Order, pending disposition of the within Application to recognize and enforce the U.S. Judgment, freezing the Settlement Funds or proceeds thereof or property acquired thereby, whether in the hands of the Respondent, or anyone else; e) in furtherance of sub-paragraph (d) an Order directing and requiring the Respondent to forthwith provide an accounting of the Settlement Funds, and the current location of all such funds, or property acquired thereby; and 32 f) an Order for the appointment of an interim Receiver (in a form to be provided to the Court) pursuant to the provisions of s.101 of the Courts of Justice Act and Rule 41 of the Rules of Civil Procedure for the purpose of securing, receiving and holding the Settlement Funds (and any property acquired thereby) pending disposition of the within Application to recognize and enforce the U.S. Judgment; and g) such further and other relief as counsel may request and this Honourable Court may deem appropriate. ALL OF WHICH IS RESPECTFULLY SUBMITTED this 10th day of July, 2017. KAGAN SHASTRI LLP Lawyers 188 Avenue Road Toronto ON M5R 2J1 David Winer (39330D) P. (416) 368-2100 ext. 225 F. (416) 324-4202 E. dwiner@ksllp.ca Lawyers for the Applicants SCHEDULE “A” LIST OF AUTHORITIES 1. Chevron Corp. v. Yaiguaje [2015] SCJ No. 42 2. RJR MacDonald Inc. v. Canada [1994] S.C.J. No. 17 (S.C.C.) 3. NEC Corp. v. Steintron International Electronics Ltd. [1985] O.J. No. 2642 (HCJ) 4. Third Generation Realty Ltd. v. Twigg Holdings Ltd. [1991] O.J. No. 2453 (Ont.G.D.) 5. Weig v. Weig 2012 ONSC 7262 6. Google Inc. v. Equustek Solutions Inc. [2017] S.C.J. No. 34 7. Mishkin v. Roddy DiPrima Ltd. [1996] BCJ No. 2660 8. SFC Litigation Trust v. Chan [2017] O.J. No. 1540 (Div Ct) 9. Beals v. Saldanha [2003] SCJ No. 77 10. Tracy v. Iran 2017 ONCA 549 Doc#3962468v2 SCHEDULE “B” TEXT OF STATUTES, REGULATIONS & BY - LAWS RULES OF CIVIL PROCEDURE VALIDATING SERVICE 16.08 Where a document has been served in a manner other than one authorized by these rules or an order, the court may make an order validating the service where the court is satisfied that, (a) the document came to the notice of the person to be served; or (b) the document was served in such a manner that it would have come to the notice of the person to be served, except for the person’s own attempts to evade service. R.R.O. 1990, Reg. 194, r. 16.08. SERVICE OUTSIDE ONTARIO WITHOUT LEAVE 17.02 A party to a proceeding may, without a court order, be served outside Ontario with an originating process or notice of a reference where the proceeding against the party consists of a claim or claims, Judgment of Court Outside Ontario (m) on a judgment of a court outside Ontario GENERAL POWER OF COURT 26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. R.R.O. 1990, Reg. 194, r. 26.01. HOW OBTAINED 40.01 An interlocutory injunction or mandatory order under section 101 or 102 of the Courts of Justice Act may be obtained on motion to a judge by a party to a pending or intended proceeding. R.R.O. 1990, Reg. 194, r. 40.01. Doc#3962468v2 2 UNDERTAKING 40.03 On a motion for an interlocutory injunction or mandatory order, the moving party shall, unless the court orders otherwise, undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party. R.R.O. 1990, Reg. 194, r. 40.03. DEFINITION 41.01 In rules 41.02 to 41.06, “receiver” means a receiver or receiver and manager. R.R.O. 1990, Reg. 194, r. 41.01. HOW OBTAINED 41.02 The appointment of a receiver under section 101 of the Courts of Justice Act may be obtained on motion to a judge in a pending or intended proceeding. R.R.O. 1990, Reg. 194, r. 41.02. FORM OF ORDER 41.03 An order appointing a receiver shall, (a) name the person appointed or refer that issue in accordance with Rule 54; (b) specify the amount and terms of the security, if any, to be furnished by the receiver for the proper performance of the receiver’s duties, or refer that issue in accordance with Rule 54; (c) state whether the receiver is also appointed as manager and, if necessary, define the scope of the receiver’s managerial powers; and (d) contain such directions and impose such terms as are just. R.R.O. 1990, Reg. 194, r. 41.03. REFERENCE OF CONDUCT OF RECEIVERSHIP 41.04 An order appointing a receiver may refer the conduct of all or part of the receivership in accordance with Rule 54. R.R.O. 1990, Reg. 194, r. 41.04. Doc#3962468v2 3 DIRECTIONS 41.05 A receiver may obtain directions at any time on motion to a judge, unless there has been a reference of the conduct of the receivership, in which case the motion shall be made to the referee. R.R.O. 1990, Reg. 194, r. 41.05. DISCHARGE 41.06 A receiver may be discharged only by the order of a judge. R.R.O. 1990, Reg. 194, r. 41.06. Courts of Justice Act Injunctions and receivers 101 (1) In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so. R.S.O. 1990, c. C.43, s. 101 (1); 1994, c. 12, s. 40; 1996, c. 25, s. 9 (17). Terms (2) An order under subsection (1) may include such terms as are considered just. R.S.O. 1990, c. C.43, s. 101 (2). Where procedures not provided 146 Jurisdiction conferred on a court, a judge or a justice of the peace shall, in the absence of express provision for procedures for its exercise in any Act, regulation or rule, be exercised in any manner consistent with the due administration of justice. R.S.O. 1990, c. C.43, s. 146. Doc#3962468v2 4 Justice for Victims of Terrorism Act S.C. 2012, c. 1, s. 2 Assented to 2012-03-13 An Act to deter acts of terrorism against Canada and Canadians [Enacted by section 2 of chapter 1 of the Statutes of Canada, 2012, in force on assent March 13, 2012.] Preamble Whereas Canadians and people everywhere are entitled to live their lives in peace, freedom and security; Whereas Parliament recognizes that terrorism is a matter of national concern that affects the security of the nation and considers it a priority to deter and prevent acts of terrorism against Canada and Canadians; Whereas acts of terrorism threaten Canada’s political institutions, the stability of the economy and the general welfare of the nation; Whereas the challenge of eradicating terrorism, with its sophisticated and trans-border nature, requires enhanced international cooperation and a strengthening of Canada’s capacity to suppress and incapacitate acts of terrorism; Whereas United Nations Security Council Resolution 1373 (2001) reaffirms that acts of international terrorism constitute a threat to international peace and security, and reaffirms the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by acts of terrorism; Whereas Canada ratified the 1999 International Convention for the Suppression of the Financing of Terrorism on February 15, 2002; Whereas hundreds of Canadians have been murdered or injured in terrorist attacks; Whereas terrorism is dependent on financial and material support; Whereas certain states that support terrorism should not benefit from state immunity in this regard; And whereas Parliament considers that it is in the public interest to enable plaintiffs to bring lawsuits against terrorists and their supporters, which will have the effect of impairing the functioning of terrorist groups in order to deter and prevent acts of terrorism against Canada and Canadians; Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: Doc#3962468v2 5 Short Title Marginal note:Short title 1 This Act may be cited as the Justice for Victims of Terrorism Act. Interpretation Marginal note:Definitions 2 The following definitions apply in this Act. foreign state has the same meaning as in section 2 of the State Immunity Act. (État étranger) listed entity has the same meaning as in subsection 83.01(1) of the Criminal Code. (entité inscrite) person includes an organization as defined in section 2 of the Criminal Code. (personne) Purpose Marginal note:Purpose 3 The purpose of this Act is to deter terrorism by establishing a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters. Cause of Action Marginal note:Action • • 4 (1) Any person that has suffered loss or damage in or outside Canada on or after January 1, 1985 as a result of an act or omission that is, or had it been committed in Canada would be, punishable under Part II.1 of the Criminal Code, may, in any court of competent jurisdiction, bring an action to recover an amount equal to the loss or damage proved to have been suffered by the person and obtain any additional amount that the court may allow, from any of the following: o (a) any listed entity, or foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or other person that committed the act or omission that resulted in the loss or damage; or o (b) a foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or listed entity or other person that — for the benefit of or otherwise in relation to the listed entity referred to in paragraph (a) — committed an act or omission that is, or had it been committed in Canada would be, punishable under any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code. Marginal note:Conditions  — hearing and determination of action by court (2) A court may hear and determine the action referred to in subsection (1) only if the action has a real and substantial connection to Canada or the plaintiff is a Canadian citizen Doc#3962468v2 6 or a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act. • Marginal note:Presumption (2.1) In an action under subsection (1), the defendant is presumed to have committed the act or omission that resulted in the loss or damage to the plaintiff if the court finds that • o (a) a listed entity caused or contributed to the loss or damage by committing an act or omission that is, or had it been committed in Canada would be, punishable under Part II.1 of the Criminal Code; and o (b) the defendant  —  for the benefit of or otherwise in relation to the listed entity referred to in paragraph (a)  —  committed an act or omission that is, or had it been committed in Canada would be, punishable under any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code. Marginal note:Suspension of limitation or prescription period (3) A limitation or prescription period in respect of an action brought under subsection (1) does not begin before the day on which this section comes into force and is suspended during any period in which the person that suffered the loss or damage • o (a) is incapable of beginning the action because of any physical, mental or psychological condition; or o (b) is unable to ascertain the identity of the listed entity, person or foreign state referred to in paragraph (1)(a) or (b). Marginal note:Refusal to hear claim (4) The court may refuse to hear a claim against a foreign state under subsection (1) if the loss or damage to the plaintiff occurred in the foreign state and the plaintiff has not given the foreign state a reasonable opportunity to submit the dispute to arbitration in accordance with accepted international rules of arbitration. • Marginal note:Judgments of foreign courts (5) A court of competent jurisdiction must recognize a judgment of a foreign court that, in addition to meeting the criteria under Canadian law for being recognized in Canada, is in favour of a person that has suffered loss or damage referred to in subsection (1). However, if the judgment is against a foreign state, that state must be set out on the list referred to in subsection 6.1(2) of the State Immunity Act for the judgment to be recognized. Doc#3962468v2 LAYNE MORRIS et al. Applicants -and- OMAR AHMED KHADR Respondent Court File No. CV-17-576756 ONTARIO SUPERIOR COURT OF JUSTICE PROCEEDING COMMENCED AT TORONTO MOVING PARTIES' FACTUM KAGAN SHASTRI LLP Lawyers 188 Avenue Road Toronto ON M5R 2J1 David Winer (39330D) P. (416) 368-2100 ext. 225 F. (416) 324-4202 E. dwiner@ksllp.ca Lawyers for the Applicants RCP-E 4C (May 1, 2016) Doc#3962468v2