Ontario Civil

Civil Procedure

Affidavit was struck out as irrelevant and scandalous

Applicant had commenced arbitration proceedings alleging respondent Kyrgyz Republic had expropriated his investment in bank. Arbitral tribunal found in favour of applicant and rejected Republic’s defence alleging criminal activity of applicant and bank. Applicant applied in Ontario to have arbitral award recognized and enforced. In response to application, Republic delivered affidavit of A, who was chief inspector of banks inspection division of National Bank of Republic. Her affidavit detailed audit and investigation of bank in support of Republic’s continued assertion that bank was involved in criminal activity. Republic had commenced proceedings before Paris Court of Appeal seeking annulment of arbitral award. Applicant sought to strike out affidavit of A on ground that it may prejudice hearing of application. Application allowed. While affidavit may be relevant to annulment proceedings, it was not relevant to validity of arbitration agreement or whether dispute fell within submission to arbitration. Affidavit was attempt to reopen merits of arbitral award in Ontario proceedings, which was not permitted. It was also attempt by Republic to repackage its main defence at arbitration as public policy objection to recognition and enforcement. Republic could not use public policy defence to challenge award on its merits. Affidavit was clearly irrelevant to defence of application and was scandalous. Its inclusion would likely cause massive trial within proceeding about criminal allegations. Affidavit of A was struck out.

Belokon v. Kyrgyz Republic (Sep. 25, 2015, Ont. S.C.J., W. Matheson J., File No. CV-15-10890-00CL) 258 A.C.W.S. (3d) 474.

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