CITATION: Gebre LLC v. The Kyrgyz Republic et al., 2022 ONSC 4137
COURT FILE NO.: CV-22-00678369-00CL
DATE: 20220718
| BETWEEN: GEBRE LLC Plaintiff – and – THE KYRGYZ REPUBLIC, KYRGYZALTYN JSC, and CENTERRA GOLD INC. Defendants | Derek J. Bell and Katelyn Ellins, for the Plaintiff HEARD: July 13, 2022 |
MCEWEN, J.
[1] Gebre LLC (“Gebre”) brings this motion for partial default judgment against the Defendants, The Kyrgyz Republic (“Republic") and Kyrgyzaltyn JSC (“KJSC"). The claim against the remaining Defendant, Centerra Gold Inc. (“Centerra”), was previously discontinued.
[2] The relief sought by Gebre against the Republic and KJSC is two-fold:
[3] For the reasons that follow, I grant the relief sought by Gebre.
1 In the Notice of Motion and Factum of Gebre, it also sought a declaration that the Centerra shares held by KJSC (the “KZN Centerra Shares”) are beneficially owned by the Republic. This relief was not pursued at the hearing of the motion. ↩
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[4] The Republic is a country in Central Asia, formerly part of the USSR. KJSC is an open-joint stock company organized under the laws of the Republic, whose sole shareholder is the State Property Management Fund of the Republic.
[5] Stans Energy Corp. (“Stans”), a publicly traded company incorporated under the laws of the Province of Ontario, owned Kutisay Mining LLC (“Kutisay”), a limited liability company incorporated in Kyrgyzstan through Stans Energy KG LLC, a limited liability registered company under the laws of the Republic.
[6] In 2015, Stans and Kutisay commenced an arbitration proceeding against the Republic in which Stans and Kutisay claimed that the Republic unlawfully expropriated their investments and failed to provide fair and equitable treatment to them contrary to the laws of the Republic on investments in the Republic (the “2003 Investment Law”). The matter proceeded to arbitration and the arbitration tribunal (the “Tribunal”) issued the Award in favour of Stans and Kutisay. Thereafter, in March 2020, Stans and Kutisay entered into an agreement to assign the Award and all rights in the Award to three entities, one of which is Gebre.
[7] On March 15, 2022, Gebre commenced the within action against the Republic, KJSC and Centerra.
[8] I begin by noting that I am satisfied that the Statement of Claim was properly served on the Republic and KJSC and has come to their attention.
[9] The Statement of Claim was served on the Republic in accordance with s. 9(5) of the State Immunity Act, R.S.C. 1985, c. S-18, by delivering a copy of the Statement of Claim to the Deputy Minister of Foreign Affairs on March 16, 2022. On June 15, 2022, counsel for Gebre received a Certificate from the Deputy Director of the Criminal, Security and Diplomatic Law Division of Global Affairs Canada, certifying that the Statement of Claim, amongst other things, was transmitted to the Republic on April 14, 2022. The Republic has not defended the Statement of Claim or in any way responded. The Statement of Claim was also served on KJSC by couriering a copy on March 16, 2022 to KJSC to the attention of its Board of Directors. According to the legal opinion obtained by Gebre, service by courier on KJSC complies with the civil procedure code of the Republic. Further, out of an abundance of caution, Gebre provided copies of the Statement of Claim to the former counsel of KJSC.
[10] Although it is not obligated to do so, Gebre followed the good practice of providing the Republic and KJSC with copies of their Motion Record for default judgment, at considerable expense. It was served on July 7, 2022. Again, there has been no response.
[11] Based on the foregoing, I am satisfied that the Republic and KJSC were properly served and have actual notice of both the Statement of Claim and the Motion Record.
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[12] The Republic was noted in default on June 20, 2022. KJSC was noted in default on June 16, 2022.2
[13] Where defendants have been noted in default, as is the case here, r. 19.02(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that the defendants are deemed to have admitted the truth of the facts pleaded in the Statement of Claim.
[14] As noted recently by Justice Perell in Barkley v. Tier 1 Capital Management Inc., 2022 ONSC 175, at para. 51:
Under rule 19.02(1)(a), a defendant who has been noted in default is deemed to admit the truth of all allegations made in the statement of claim. However, a plaintiff is not entitled to judgment merely because the facts are deemed to be admitted; the pleaded facts must entitle the plaintiff to the judgment sought. Because the defendant is deemed to have admitted the allegations of fact made in the statement of claim, if the deemed admissions are sufficient to establish liability, it is not proper for the court to enter into an inquiry about liability; the judge should confine himself or herself to determining the quantum of damages.
[15] Accordingly, if the facts as pleaded are sufficient to grant summary judgment, then the inquiry ends. As has also been noted in a number of cases, although the Rules provide the consequences for noting in default, the court has the jurisdiction and the duty to be satisfied on the civil standard of proof that the plaintiff is able to prove the claim and damages. Where there are insufficient facts pleaded, the plaintiff must adduce evidence which, combined with the admitted facts, would result in a judgment being granted. If the court finds the evidence adduced at the motion to be lacking in credibility or lacking “an air of reality”, the court can refuse to grant judgment or grant partial judgment regardless of the default: Fuda v. Conn, 2009 CanII 1140 (Ont. S.C.)), at para. 16.
[16] I accept Gebre’s submissions that the deemed admission of the facts alone set out in the Statement of Claim are sufficient to grant summary judgment both with respect to the order recognizing the Award (the “Recognition Order”) and the declaration that KJSC is the alter-ego of the Republic. Further, and in any event, the evidence adduced on the motion by Gebre adds an “air of reality” to support its motion.
2 It bears noting that Canada is not the only jurisdiction where the Republic has failed to appear. The Republic failed to respond to Gebre's recognition proceedings in the District of Columbia, U.S.A., and default judgment was obtained against the Republic. ↩
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[17] The test for a Recognition Order is set out in Article 36 of the Model Law. Article 35 of the Model Law states that an arbitral award “shall be recognized as binding ... subject to the provisions of this article and of article 36”.
[18] The general rule of interpreting the recognition and enforcement provisions of the Model Law is that “the grounds for refusal of enforcement are to be construed narrowly”: Popack v. Lipszyc, 2018 ONCA 635, 141 O.R. (3d) 561, at para. 40.
[19] Article 36 generally provides that recognition of an arbitral award may only be refused at the request of the party against whom it is invoked if that party can prove:
[20] Further, the Court of Appeal in Consolidated Contractors, at para. 19, held that Article 5 of the Model Law prohibits court interventions except as provided in the Model Law.
[21] As noted in Gebre’s factum, the following facts are set out in the Statement of Claim and are deemed to be admitted by the Republic and KJSC:
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submitting the dispute to “arbitration or an international ad hoc tribunal formed in accordance with the arbitration rules of the United Nations Commission on International Trade Law” (“UNCITRAL”), which Stans and Kutisay did by serving a Notice of Arbitration on the Republic (paras. 12-13).
[22] In addition to the deemed admitted facts in the Statement of Claim, Gebre relies upon the following as lending an “air of reality” to their assertions:
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[23] Based on the deemed admissions and the supporting evidence set out above, I am satisfied that Gebre has established that there are grounds for recognizing the Award. None of the factors in Article 36 are present. The time for any appeal has also passed and there are no limitation issues respecting the recognition of the Award.
[24] Gebre is therefore entitled to an order recognizing the Award.
[25] First, insofar as the law on declaratory relief is concerned, Gebre relies upon the decision of the Supreme Court of Canada in S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, [2019] 1 S.C.R. 99, at para. 60, where the court held that declaratory relief may be appropriate where:
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[26] I agree with Gebre that in the facts of this case it is appropriate to consider the declaration sought.
[27] The four factors are present in the circumstances of this case. The court has jurisdiction to grant declaratory relief pursuant to s. 97 of the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 97. This is a real issue, as the nature of KJSC’s identity is relevant to whether KJSC’s assets can be seized by the sheriff in satisfaction of the Award. Gebre clearly has a genuine interest in the resolution of this matter, and the defendants have an interest in opposing the declaration.
[28] Second, insofar as the issue of alter-ego itself is concerned, I accept Gebre’s submission that the applicable test to consider in this case was set out in Yaiguaje v. Chevron Corporation, 2018 ONCA 472, 141 O.R. (3d) 1, at para. 66, where the Court of Appeal held:
With respect to cases where it is alleged that a subsidiary corporation is a mere facade that protects its parent corporation, in order to ignore the corporate separateness principle, the court must be satisfied that (i) there is complete control of the subsidiary, such that the subsidiary is the “mere puppet” of the parent corporation; and (ii) the subsidiary was incorporated for a fraudulent or improper purpose or used by the parent as a shell for improper activity.
[29] Even though the facts of the within case are different than those in Yaiguaje, I see no meaningful distinction between a case of a pure corporation-parent and corporation-subsidiary (as was the case in Yaiguaje) and the facts of this case where the “parent” is the Republic.
[30] I accept Gebre’s submission that both the deemed admissions in the Statement of Claim and the additional evidence adduced on the motion satisfies the two-part test in Yaiguaje.
[31] With respect to the deemed admissions, as noted in Gebre’s factum, the following facts are set out in the Statement of Claim and are deemed to be admitted by the Republic and KJSC:
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[32] Insofar as the first part of the test in Yaiguaje is concerned (i.e. complete control), in addition to the deemed admitted facts in the Statement of Claim, Gebre relies upon the following as lending an “air of reality” to their assertions:
[33] Insofar as the second portion of the test in Yaiguaje is concerned (i.e. that the subsidiary was incorporated for a fraudulent or improper purpose or used by the parent as a shell for improper
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activity), there is an air of reality to this assertion given Justice Gilmore’s further findings that Bolturuk breached his fiduciary and confidentiality duties to Centerra and that Bolturuk’s actions between December 2020 and May 2021 were intended to harm Centerra. Justice Gilmore further held that Bolturuk’s conduct put him in a position of conflict with Centerra and he failed to disclose communications with the President of the Republic with respect to the Republic’s well-planned takeover of the Kumtor Gold Mine, which was owned by Centerra. These findings of fact by Justice Gilmore are supported by Centerra in the Centerra Gold Inc. v. Bolturuck pleading, which were included in the materials before me.
[34] The findings of Justice Gilmore and the evidence adduced amply demonstrate that Bolturuk, while sitting on Centerra’s Board of Directors as KJSC’s representative, worked for months contrary to the interests of Centerra to ensure that the Republic could nationalize the Kumtor Mine. Ultimately, Bolturuk was appointed as an external manager of KJSC and the general manager of the Kumtor Gold Mine by the Republic.
[35] Based on the foregoing, I am satisfied that KJSC was used by the Republic for an improper activity. KJSC was used by the Republic to seize the Kumtor Gold Mine and it took steps to defraud KGC by attempting to divert gold sale proceeds. Overall, I am therefore satisfied that the test in Yaiguaje has been met and the declaration that KJSC is the alter-ego of the Republic be granted.
[36] I pause here to note that this motion was heard prior to the hearing that is scheduled for July 28, 2022 concerning a proposed Plan of Arrangement described in the global arrangement agreement entered into between Centerra, the Republic, KJSC et al.. I agreed to hear the motion in advance of the July 28, 2022 hearing as counsel advised, and I accepted, that the findings on this motion will not affect the ability of the court at the final order hearing to issue whatever relief it deems appropriate. The Republic and KJSC are not parties to that proceeding and, as noted, Centerra is no longer a party to this proceeding.
[37] For the reasons above, an order shall go recognizing the Award pursuant to the ICAA and the Model Law as well as a declaration that KJSC is the alter-ego of the Republic.
[38] Gebre is further entitled to its costs. It can provide me with a Bill of Costs, in writing, in this regard, along with submissions not to exceed three pages.
Signature
McEwen J.
Released: July 18, 2022
CITATION: Gebre LLC v. The Kyrgyz Republic et al., 2022 ONSC 4137
COURT FILE NO.: CV-22-00678369-00CL
DATE: 20220718
| BETWEEN: | |
| GEBRE LLC | Plaintiff |
| – and – | |
| THE KYRGYZ REPUBLIC, KYRGYZALTYN JSC, and CENTERRA GOLD INC. | |
| Defendants |
REASONS FOR DECISION
McEwen J.
Released: July 18, 2022