Ultracuts Franchises Inc. v. Wal-Mart Canada Corp., (2005) 196 Man.R.(2d) 163 (QB)

• Judge: Beard, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: October 18, 2005
• Jurisdiction: Manitoba
• Citations: (2005), 196 Man.R.(2d) 163 (QB);2005 MBQB 222

Ultracuts Franchises v. Wal-Mart (2005), 196 Man.R.(2d) 163 (QB)

MLB headnote and full text

Temp. Cite: [2005] Man.R.(2d) TBEd. OC.038

Ultracuts Franchises Incorporated (plaintiff) v. Wal-Mart Canada Corp. (defendant)

(CI 01-01-21900)

Wal-Mart Canada Corp. (plaintiff) v. Ultracuts Franchises Incorporated (defendant)

(CI 04-01-39025)

(2005 MBQB 222)

Indexed As: Ultracuts Franchises Inc. v. Wal-Mart Canada Corp.

Manitoba Court of Queen's Bench

Winnipeg Centre

Beard, J.

October 18, 2005.

Summary:

Ultracuts sued Wal-Mart. Wal-Mart sought to stay the action arguing, inter alia, that Manitoba was not the convenient forum. In a second proceeding, Wal-Mart filed a claim for recognition of a judgment obtained in Arkansas (U.S.) against Ultracuts and sought summary judgment on that claim. Ultracuts opposed Wal-Mart's motion for a stay of proceedings in the Ultracuts action and opposing the recognition of the Arkansas judgment on the basis that the process in the Arkansas courts was not conducted in accordance with Canadian principles of natural or fundamental justice.

The Manitoba Court of Queen's Bench held that the convenient forum issue was moot and granted the motion for summary judgment to recognize the Arkansas judgment.

Conflict of Laws - Topic 1666

Actions - General - Forum conveniens - Stay of proceedings where action pending in another jurisdiction (lis alibi pendens) - Ultracuts sued Wal-Mart - Wal-Mart sought to stay the action arguing, inter alia, that Manitoba was not the convenient forum - Wal-Mart had obtained a judgment involving the same subject matter against Ultracuts in Arkansas (U.S.) - Wal-Mart argued that Arkansas was the more convenient forum - The parties agreed that the matter in Arkansas was final - The Manitoba Court of Queen's Bench held that a determination of the question of forum non conveniens required a comparison of two or more competing fora - As there were no longer two available fora, the question of more convenient forum became moot - See paragraphs 12 to 15.

Conflict of Laws - Topic 6663

Foreign judgments - Action on foreign judgment - Bars or defences - A party (Ultracuts) opposed the recognition of judgment obtained by Wal-Mart in Arkansas (U.S.) - It argued that the process in Arkansas was not conducted in accordance with Canadian principles of natural or fundamental justice because, inter alia, two judges involved in the matter (the trial judge and an appellate judge) owned shares or were trading in shares in Wal-Mart and a related company during the proceeding - Therefore, the judges' pecuniary interest or the effect of the proceedings on that interest showed bias or a reasonable apprehension of bias - The Manitoba Court of Queen's Bench rejected the argument - There was no clear evidence that the judges owned the shares in Wal-Mart when they determined the matter - When they did own shares, it was only a small number - The litigation would not have affected the value of the shares or any dividends - The appellate judge was only one of six judges on the panel - See paragraphs 48 to 65.

Conflict of Laws - Topic 6663

Foreign judgments - Action on foreign judgment - Bars or defences - A party (Ultracuts) opposed the recognition of judgment obtained by Wal-Mart in Arkansas (U.S.) - It argued that the process in Arkansas was not conducted in accordance with Canadian principles of natural or fundamental justice because, inter alia, judges in Arkansas were elected and Wal-Mart was a powerful corporation in a small economic state and commanded a great deal of influence - The Manitoba Court of Queen's Bench rejected the arguments as unfounded - Ultracuts could have proceeded in a U.S. federal court where judges were appointed for life, but chose not too - State judges were elected in half of the states in the United States - Permitting a challenge of U.S. decisions on the basis that some of the judges were elected would discourage rather than facilitate foreign trade and foreign relations generally and was counter to the principles of comity and reciprocity - See paragraphs 71 to 80.

Courts - Topic 680

Judges - Disqualification - Conflict of interest - The Manitoba Court of Queen's Bench held that the following principles should apply to determine whether to disqualify a judge based on his or her shareholding in a corporation: "a judge should not be automatically disqualified from hearing a case based on his or her holding shares in a corporation involved in the proceeding; there should be an analysis undertaken to determine whether the outcome of the proceeding could have any effect on the value of the shares or the dividend the judge could expect to receive; if the litigation could not realistically be expected to affect either the value of the shareholding or the dividends from those shares, then the judge should not be automatically excluded from hearing the case. I accept that a judge's shareholdings would be a factor in determining whether there was a reasonable apprehension of bias, which is a separate analysis." - See paragraphs 37 and 38.

Courts - Topic 680

Judges - Disqualification - Conflict of interest - [See first Conflict of Laws - Topic 6663 ].

Courts - Topic 686

Judges - Disqualification - Bias - By trial judge - [See first Conflict of Laws - Topic 6663 and first Courts - Topic 680 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See first Conflict of Laws - Topic 6663 and first Courts - Topic 680 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - [See Conflict of Laws - Topic 1666 ].

Practice - Topic 5927

Judgments and orders - Enforcement of foreign judgments - Bars - Public policy - [See both Conflict of Laws - Topic 6663 ].

Practice - Topic 5928

Judgments and orders - Enforcement of foreign judgments - Defences - [See both Conflict of Laws - Topic 6663 ].

Cases Noticed:

Beals v. Saldanha et al. (2003), 314 N.R. 209; 182 O.A.C. 201 (S.C.C.), refd to. [para. 17].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 17].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201, refd to. [para. 17].

Eckervogt et al. v. British Columbia (Minister of Employment and Investment) (2004), 201 B.C.A.C. 302; 328 W.A.C. 302 (C.A.), refd to. [para. 17].

Clenae Pty. Ltd. et al. v. Australia and New Zealand Banking Group Ltd., [1999] 2 V.S.C.A. 573, refd to. [para. 22].

Dimes v. Grand Junction Canal (Proprietors of) (1852), 10 E.R. 301 (H.L.), refd to. [para. 23].

R. v. Rand (1866), L.R. 1 Q.B. 230 (C.A.), refd to. [para. 24].

R. v. Camborne Justices; Ex parte Pearce, [1955] 1 Q.B. 41, refd to. [para. 24].

Locabail (U.K.) Ltd. v. Bayfield Properties Ltd., [1999] E.W.J. No. 5918 (C.A.), refd to. [para. 33].

Weatherill v. Lloyd's TSB Bank plc, [2000] E.W.J. No. 4433 (C.A.), refd to. [para. 34].

Pinochet, Re (1998), 237 N.R. 201 (H.L.), refd to. [para. 34].

R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte - see Pinochet, Re.

Robertson v. Edmonton Chief of Police (2004), 362 A.R. 44 (Q.B.), refd to. [para. 82].

Arsenault-Cameron et al. v. Prince Edward Island, [1999] 3 S.C.R. 851; 267 N.R. 386; 201 Nfld. & P.E.I.R. 1; 605 A.P.R. 1, refd to. [para. 82].

Authors and Works Noticed:

Bryden, Philip, Legal Principles Governing the Disqualification of Judges (2003), 82 Can. Bar Rev. 555, generally [para. 25]; pp. 574, 575 [para. 20]; 592 to 595 [para. 82].

Lester, Geoffrey S., Disqualifying Judges for Bias and Reasonable Apprehension of Bias: Some Problems of Practice and Procedure (2001), 24 Adv. Q. 326, pp. 327, 328 [para. 21]; 330 [para. 32]; 338 [para. 82].

Counsel:

Robert L. Tapper, Q.C., and Peter Halamandaris, for the plaintiff/defendant, Ultracuts;

E.W. Olson, Q.C., and Shane I. Perlmutter, for the defendant/plaintiff, Wal-Mart.

These motions were heard by Beard, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on October 18, 2005.