Special Hygiene Solutions Limited [SHS] obtained a Tomlin order in the U.K., which it subsequently sought to partially enforce in Saskatchewan.
A Tomlin Order is:
an order staying all further proceedings on agreed terms, and the parties are entitled to apply to court to enforce the agreed terms, should that become necessary, within the existing proceedings. Thus, a Tomlin order voids the need to commence new proceedings to enforce the agreed terms, but a party would need to return to court to obtain a further order to enforce them. This is because the agreed terms are not part of the order, so they cannot be directly enforced as an order of the court.
The Tomlin order at issue was obtained on consent and was subject to agreed terms that were referenced in the preamble to the Tomlin order, but which were not specifically part of the order made by the U.K. court.
SHS claimed that the respondent to the application was in breach of the agreed terms and it sought to enforce the agreed terms in Saskatchewan, Canada without first obtaining such an order from the U.K. court.
The Canadian court dismissed the application on the basis that there was no U.K. order was in existence with respect to the agreed terms. Accordingly, the application was deemed premature and it was therefore dismissed.
Ruzbeh Hosseini is an associate who practices in the business litigation and cross-border litigation groups. Ruzbeh is regularly involved in the development of litigation strategy and he has appeared in the Ontario Superior Court of Justice and Ontario Court of Appeal on behalf of clients.
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