CITATION: Mexico v. Burr, 2026 ONCA 506
DATE: 20260707
DOCKET: COA-25-CV-1527
Roberts, Thorburn and Sossin JJ.A.
BETWEEN
The United Mexican States
Applicant (Appellant)
and
Gordon G. Burr; Erin J. Burr; John Conley; Neil Ayervais; Deana
Anthone; Douglas Black; Howard Burns; Mark Burr; David Figueiredo;
Louis Fohn; Deborah Lombardi; P. Scott Lowery; Thomas Malley; Ralph
Pittman; Daniel Rudden; Marjorie “Peg” Rudden; Robert E. Sawdon;
Randall Taylor; James H. Watson Jr.; B-Mex, LLC; B-Mex II, LLC; Oaxaca
Investments, LLC; Palmas South, LLC; B-Cabo, LLC; Colorado Cancun,
LLC; Santa Fe Mexico Investments, LLC; Caddis Capital, LLC; Diamond
Financial Group, Inc.; J. Paul Consulting; LAS KDL, LLC; Mathis Family
Partners, Ltd.; Palmas Holdings, Inc.; Trude Fund II, LLC; Trude Fund III,
LLC; Victory Fund, LLC
Respondents (Respondents)
Daniel Hohnstein, Stephanie Desjardins and Hugh Jones, for the appellant
John Terry, Emily Sherkey and Natasha Williams, for the respondents Gordon G.
Burr, Erin J. Burr, John Conley, Neil Ayervais, Deana Anthone, Douglas Black,
Howard Burns, Mark Burr, David Figueiredo, Louis Fohn, Deborah Lombardi,
P. Scott Lowery, Thomas Malley, Ralph Pittman, Daniel Rudden, Marjorie “Peg”
Rudden, Robert E. Sawdon, James H. Watson Jr., B-Mex, LLC, B-Mex II, LLC,
Oaxaca Investments, LLC, Palmas South, LLC, B-Cabo, LLC, Colorado Cancun,
LLC, Santa Fe Mexico Investments, LLC, Caddis Capital, LLC, Diamond Financial
Group, Inc., Family Vacation Spending, LLC, Financial Visions, Inc., J. Johnson
Consulting, LLC, J. Paul Consulting, LAS KDL, LLC, Mathis Family Partners, Ltd.,
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Palmas Holdings, Inc., Trude Fund II, LLC, Trude Fund III, LLC and Victory Fund,
LLC
No one appearing for the respondent Randall Taylor
Heard and rendered orally: July 2, 2026
On appeal from the judgment of Justice William Black of the Superior Court of
Justice, dated October 8, 2025, with reasons reported at 2025 ONSC 5724.
[1] The appellant appeals from the dismissal of its application to set aside an
international arbitral award. The arbitral tribunal (the “Tribunal”) found that the
appellant had failed to accord fair and equitable treatment to the respondents
under art. 1105 of the North American Free Trade Agreement (“NAFTA”).
[2] The Tribunal found that about ten months after issuing a gambling permit to
the respondents allowing them to operate games of chance in casinos in Mexico,
the appellant revoked it and then shut down the casinos despite an injunction, and
refused to issue a new permit, entirely undermining the respondents' business.
The Tribunal concluded that this was for "no discernible reason" other than
because of a change in political leadership, and that it represented an
"extraordinary change of heart" from the appellant's previous position expressly
recorded in the 2012 permit that the respondents' casinos had been operated in
compliance with applicable law. The Tribunal held that the appellant had ample
opportunity to preserve the respondents' operations but that the new government
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had instead opted to terminate the business without identifying a public or
regulatory concern. The Tribunal ordered the appellant to pay the respondents
over $80 million in damages.
[3] The appellant raises two overarching grounds of appeal: 1) the application
judge's analysis of the Tribunal's decision was tainted by his failure to apply the
correct standard of review; and 2) the application judge erred by failing to set aside
the arbitral award when the appellant was denied procedural fairness and deprived
of a full and fair opportunity to present its case.
[4] We are not persuaded that the application judge made any reversible error.
[5] First, the application judge analyzed the Tribunal decision through the
correct standard of review: he framed his analysis by correctly stating that
intervention "will be warranted only when the Tribunal's conduct is so serious that
it cannot be condoned” and that “the standard is whether a Tribunal's impugned
decision, or actions in reaching that decision ‘offend our most basic notions of
morality and justice,' thereby constituting a breach of procedural fairness”: see
Consolidated Contractors Group S.A.L. (Offshore) v. Ambatovy Minerals S.A.,
2017 ONCA 939, 70 C.L.R. (4th) 5, at para. 65, leave to appeal refused, [2018]
S.C.C.A. No. 46 When read in the entire context of his reasons, his references to
“extreme departures from basic tenets of procedural fairness” and
“unconscionable procedural unfairness” did not elevate the standard of review but
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were aptly descriptive of the exceptional nature of the court's intervention as set
out in the governing principles that guided his analysis. In any event, even
assuming for the sake of the appellant's argument that the application judge
referenced an elevated standard, it is of no moment because the application judge
found that there was no procedural fairness breach of any nature. As he stated: “I
do not accept that there was anything unfair about this process, let alone anything
of the fundamental nature that would be required in order to justify a setting aside.”
[6] Second, applying the correct standard of review, the application judge
rejected the same arguments about procedural unfairness that the appellant
repeats on appeal and determined, correctly in our view, that there was no basis
to interfere with the Tribunal's decision. As the application judge noted, the
Tribunal's decision that spanned over 100 pages was the culmination of over
9 years of heavily contested litigation, extensive documentary discovery and
production, 9 days of hearing involving over 20 fact and expert witnesses,
thousands of exhibits, and over 1500 pages of written submissions by the parties.
The appellant's contention that it did not have the opportunity to fully and properly
present its case has no foundation on this record.
[7] Moreover, the Tribunal's reasons clearly belie the appellant's contention that
the documentary production and judicial review issues were of central importance
and led to procedural unfairness. The application judge properly characterized the
appellant's arguments about documentary production as “selectively 'cherry
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picking' aspects of the evidence, showcasing those aspects in isolation, ignoring
the context and the process, and presenting a revisionist history of what were in
fact routine and largely inconsequential documentary orders.” That the appellant's
submissions about judicial review occupied only three paragraphs of its hundreds
of pages of written submissions and one sentence of its opening submissions also
reveals their inconsequential importance. Nothing turned on these issues. We
agree with the application judge's analysis and disposition of these issues.
[8] For these reasons, the appeal is dismissed.
[9] As agreed, the appellant shall pay the respondents their costs in the all-
inclusive amount of $60,000.
"L.B. Roberts J.A."
"Thorburn J.A."
"L. Sossin J.A."