DOCKET:C37098
M27887
COURT OF APPEAL FOR ONTARIO
LASKIN, GOUDGE AND SIMMONS JJ.A.
B E T W E E N:
GENERAL CONFERENCE OF SEVENTH-DAY ADVENTISTS, REVIEW & HERALD PUBLISHING, UNION CONFERENCE ASSOCIATION OF SEVENTH-DAY ADVENTISTS, PACIFIC UNION CONFERENCE ASSOCIATION OF SEVENTH-DAY ADVENTISTS AND ATLANTIC UNION CONFERENCE ASSOCIATION OF SEVENTH-DAY ADVENTISTS
Clayton Ruby
Ronald G. Chapman
for the appellant
Applicants/Respondents on Appeal
H. Keith Juriansz
for the respondent
- and -
STEVEN F. TIFFIN also known as STEPHEN F. TIFFIN, THOMAS S. TIFFIN and CANADIAN IMPERIAL BANK OF COMMERCE
Respondents/Appellants on Appeal
Heard: December 10, 2001
On motion for review of an order of Carthy J.A. dated October 19, 2001
SIMMONS J.A.:
[1] On September 6, 2000 Swinton J. ordered that Steven F. Tiffin and Thomas S. Tiffin (the “moving parties”) be examined under oath in Toronto pursuant to Letters Rogatory issued by the Superior Court of California. After an unsuccessful appeal to this court, and an unsuccessful attempt to obtain leave to appeal to the Supreme Court of Canada, the moving parties brought a further motion to Swinton J. asking that she set aside her September 6, 2000 order.
[2] The moving parties submitted that the Letters Rogatory originally relied on by Swinton J. were null and void, and that the orders for their examination were accordingly made without jurisdiction. Swinton J. dismissed their motion on October 10, 2001. The moving parties appealed.
[3] On October 19, 2001, the moving parties requested a stay of the order dated September 6, 2000, and a stay of payment out of court of any monies paid into court, pending appeal, by motion to a single judge of this court. In dismissing the motion for a stay Carthy J.A. found that the provisions of rule 63.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, do not permit a stay of an order other than the order under appeal. He also observed that the order under appeal does nothing more than refuse an order. In effect, he determined that there is nothing to stay.
[4] The moving parties ask that the order dated October 19, 2001 be set aside and that the stays they requested, as well as a stay of the further order of Swinton J. dated October 10, 2001, be granted. They also ask that their request for an order dismissing this entire proceeding, made for the first time in their amended notice of motion to this panel, be adjourned.
[5] I would dismiss this motion.
6. Background
[6] On September 6, 2000 Swinton J. gave effect to Letters Rogatory issued by the Superior Court of California on January 27, 2000 and February 25, 2000 (the “original Letters Rogatory”) allowing defendants in a California proceeding (“the responding parties”) to obtain evidence from three non-parties to the California proceeding for use at a California trial. In addition to the oral examinations of Thomas Tiffin and Steven Tiffin, Swinton J. ordered the Canadian Imperial Bank of Commerce to produce certain documents for inspection at least ten days prior to the oral examinations.
[7] On March 13, 2001, this court dismissed an appeal from the order of Swinton J. dated September 6, 2000. On September 27, 2001, an application for leave to appeal to the Supreme Court of Canada was dismissed.
[8] On October 9, 2001, the moving parties asked Swinton J. to set aside her September 6, 2000 order because of newly discovered evidence and want of jurisdiction. The moving parties asserted that the original Letters Rogatory were null and void as of September 6, 2000 because of Amended Letters Rogatory issued on July 21, 2000. They relied on a declaration of Arlene Segal, an attorney at law licensed to practise in California, executed on May 31, 2001, in which Ms. Segal deposes that if the Amended Letters Rogatory were issued under a provision permitting reconsideration of previously made orders, she believes the original Letters Rogatory were superseded by the Amended Letters Rogatory.
[9] Ms. Segal refers to various authorities that confirm that the effect of an amended order is to “supersede” the original order. She also refers to various excerpts from those authorities that the moving parties submit clarify the meaning of “supersede”. For example:
- … Walker v. Walker (1960) 177 C.A. 2d 89, in which case the court stated that “the amended order from which appeal has been taken must be deemed to have superseded for all purposes the original order from which the wife also seeks to appeal,” at 92. The same case also states the following: “Because the amended order was the only document in which the property was described we shall consider that for all purposes it has superseded the original order,” at 91.
- In … Hayes v. Risk (1967) 255 C.A. 2d 613, the court considered the effect of an amended complaint as follows: “Where a complaint is amended … (t)he new pleading supersedes the original and furnishes the sole basis for the cause of action…(t)he original complaint is dropped out of the case and ceases to have any effect as a pleading, or as a basis for judgment,” at 623.
[10] The responding parties filed a document they refer to as an order of the California Superior Court dated June 22, 2001 in response to the moving parties’ motion. That document includes the following provisions:
SUPERIOR COURT OF CALIFORNIA
TO THE ABOVE ENTITLED COURT:
IT IS HEREBY STIPULATED by and between all parties to the within action as follows:
…
F. Accordingly, the parties agree as follows:
- That the Ex Parte Order Approving the Issuance of Amended Letters Rogatory, issued by this court and dated July 21, 2000, is deemed null and void, ab initio, nunc pro tunc.
…
- That the original Letters Rogatory Re: Appearance and Testimony of Steven F. Tiffin … is deemed to be in full force and effect, from the date of its signing to and including the date of this Stipulation.
Other paragraphs, similar to paragraph 10, provide for the continuing effect of the original Letters Rogatory in other respects.
[11] In dismissing the motion to set aside her September 6, 2000 order Swinton J. made the following findings and observations:
… The grounds set out in the Notice of Motion state that the effect of the Amended Letters Rogatory issued by the California Superior Court on July 21, 2000 was to supersede and replace the Letters Rogatory on which I based my decision.
Fraud
… Here, the argument is made that the applicants in the earlier proceeding put before me an invalid order, given Ms. Segal’s evidence on California law, and thus it can be inferred that they perpetrated a fraud on the court.
…there was nothing in the Notice of Motion nor the case law filed in advance that would have alerted the responding parties to a claim of fraud.
In the earlier proceedings, … counsel for the Tiffins, had objected to the applicants’ reliance on the July 21, 2000 Amended Letters Rogatory, which provided particulars of the information on which the applicants sought to examine the Tiffins in accordance with the earlier Letters Rogatory. In the circumstances, Mr. Juriansz chose not to rely on the Amended Letters Rogatory and argument proceeded only with respect to the earlier Letters Rogatory (that is, the ones lacking particulars). No question was raised at that time, nor until this motion was filed in June, 2001, with respect to the validity of the earlier Letters Rogatory.
I am satisfied that Mr. Juriansz acted in the earlier proceeding on the assumption that the earlier Letters Rogatory were valid and there was no intent to mislead the court. Nor is there evidence from which I would conclude that Mr. Hiroshima acted fraudulently.
New Evidence
Moreover, this is not a case in which it would be proper to re-open the decision the basis that new evidence was obtained after the initial decision. I am satisfied that the moving parties could have obtained the information about the legal effect of the July 21, 2000 [Amended] Letters Rogatory prior to the original hearing on August 31, 2000, had they exercised reasonable diligence…
There is no evidence from … counsel for the Tiffins at the original hearing, to explain why he could not have obtained this information prior to that hearing.
Finally, I note that relief under Rule 59.06 is discretionary, and that unreasonable delay by the moving party may defeat a motion to set aside an earlier judgment. In this case, there is no adequate explanation as to why the moving parties failed to act in a more timely manner …
I note, as well, that the California court has since revoked the July 21, 2000 Letters Rogatory and, on June 22, 2001 deemed the original orders and Letter Rogatory to be in full force and effect from the date of signing to the date of stipulation. Given Ms. Segal’s opinion, this order would have superseded the July 21, 2000 order on which the moving parties rely, and I have no evidence to suggest that it is not effective to deem the earlier orders in full force and effect from the date of signing.
Res Judicata
This is a case where the doctrine of res judicata applies…
In this case, the moving parties could, with reasonable diligence, have raised the issue of the validity of the earlier Letters Rogatory in the original proceeding, but they did not do so.
The moving parties argue that there is an exception to the doctrine of res judicata where the earlier judgment was made improvidently, by which they mean “without jurisdiction”…
I have been provided with no cases in which a court re-opened a final judgment after it had been confirmed on appeal, because of its own jurisdictional error…
Moreover, I am not satisfied that there is such a jurisdictional error here. …
In my view, whether or not the request relied on was valid, as a matter of California law, at the time of my decision, is not an issue going to my jurisdiction. Section 60(1) [of the Evidence Act, R.S.O. 1990, c. E. 23] states that where it is made to “appear” to the Ontario Court that there has been a duly authorized request from the foreign court, the Ontario Court can give an order to enforce the Letters Rogatory. In this case, there was such a request in the Letters Rogatory before me. Because of [counsel’s] protest that it would be unfair to his clients to rely on the July 21, 2000 Amended Letters Rogatory without him having had a chance to cross-examine, the applicant’s relied only on the earlier Letters Rogatory, and the hearing proceeded on the assumption that they were valid. In these circumstances, there may have been, at most, an error within jurisdiction, but there was no jurisdictional error.
[12] The moving parties advance the following grounds of appeal in their notice of appeal of the October 10, 2001 order:
- The Learned Judge erred in holding that the lack of jurisdiction was not fatal to her order dated September 6, 2000;
- The Learned Judge erred in finding that her order dated September 6, 2000 should not be set aside;
- The Learned Judge erred in finding that there was a necessity of due diligence when the issue that was before the court was one of jurisdiction, not facts.
[13] As for the motion to review the order of Carthy J.A., the moving parties assert that he erred in treating the motion to set aside the original order as a separate application from the original order. They say it was an application within that order and that there was never a “new” application or “new” cause of action brought. In the alternative they submit that rule 63.02 permits the relief they seek, and that, in any event, a full panel of this court has inherent power to make the order sought.
[14] As for the merits of the motion for a stay, the moving parties say that s. 60 of the Evidence Act requires a valid request from a foreign court as a condition precedent to the jurisdiction to make an order for an examination. They say the uncontradicted evidence of Ms. Segal demonstrates that the original Letters Rogatory were a nullity as of September 6, 2000. They rely on the June 22, 2001 order of the Superior Court of California, which purports to validate the original Letters Rogatory, as additional evidence of their view that the original Letters Rogatory were rendered null and void by the Amended Letters Rogatory issued on July 21, 2000.
[15] The moving parties also assert that a decision made without jurisdiction in the first instance is incapable of forming the basis of an estoppel and that Swinton J. erred in holding that lack of jurisdiction was not fatal to her order made on September 6, 2000: see Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] S.C.J. No. 46 at para. 51. They further assert that Swinton J. erred in finding there was a need for due diligence when the issue before her was one of jurisdiction, not facts.
[16] Finally, the moving parties rely on the fact that failure to grant a stay would render nugatory any subsequent judgment of this court upholding their position.
[17] As for their request for a dismissal of this proceeding, the moving parties rely on information suggesting that the California action may have been dismissed, but say they require additional time to obtain further information.
40. Decision
41. i) Request for a Stay
[18] The issues to be considered on a motion for a stay are: i) whether there is a serious question to be determined in the sense of there being a ground of appeal that is not frivolous or vexatious; ii) whether the moving would suffer irreparable harm if a stay is refused; and iii) an assessment of the balance of convenience in the sense of which party would suffer the greater harm from the granting or refusal of a stay pending a decision on the merits: R.J.R. – MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311. Generally, courts must decide whether the interests of justice call for a stay: Ogden Entertainment Services v. United Steelworkers America, Local 440 (1998), 1998 1441 (ON CA), 38 O.R. (3d) 448 (C.A.).
[19] Assuming, without deciding, that a full panel of this court has jurisdiction to grant the order requested under s. 134(2) of the Courts of Justice Act, R.S.O. 1990, c. 43, I would decline to set aside the order of Carthy J.A. refusing the request for a stay. In my view the moving parties have failed to demonstrate a serious issue to be determined on appeal, and therefore have failed to meet the first requirement of the R.J.R. – MacDonald test.
[20] The moving parties’ submissions concerning jurisdiction focus exclusively on the alleged invalidity of the original Letters Rogatory as of September 6, 2000. Leaving aside the merits of those submissions, and assuming for the moment that the attack on Swinton J.’s order can be properly characterized as jurisdictional, that focus is misguided. The moving parties raised no objection to the validity of the original Letters Rogatory when Swinton J. made her September 6, 2000 order. They knew of the existence of the Amended Letters Rogatory at the time of the hearing and objected to them being introduced. They now seek to rely on the very document to which they objected in order to challenge the jurisdiction of the court to make the order that ensued.
[21] Particularly in these circumstances, the inquiry concerning jurisdiction is not limited to an examination of the validity of the original Letters Rogatory on which Swinton J. relied, but extends to any Letters Rogatory that create jurisdiction to grant the order made as of September 6, 2000. To hold otherwise would permit parties to use jurisdiction unfairly to make an end run on the principles of res judicata, and as a means of tactical delay.
[22] Leaving aside the validity of the original Letters Rogatory as of September 6, 2000, absent evidence that the Amended Letters Rogatory did not provide an alternate basis for making the September 6, 2000 order, and absent evidence that the June 22, 2001 order is not effective in accordance with its terms, the moving parties cannot demonstrate a serious issue for appeal concerning the jurisdiction to make the September 6, 2000 order. Because it is the moving parties who seek to set aside an existing order the onus is on them to establish lack of jurisdiction.
[23] The moving parties submit that s. 60 of the Evidence Act requires a valid request from a foreign court as a condition precedent to jurisdiction to make an order for an examination. Swinton J. held that the question of whether the original Letters Rogatory were valid, “as a matter of California law, at the time of [her] decision, is not an issue going to … jurisdiction”. Based on a review of s. 60 of the Evidence Act she held it is sufficient for the purpose of issuing an order enforcing Letters Rogatory that it is made to “appear” to the Superior Court that there has been a duly authorized request from a foreign court. She specifically found that the moving parties had objected to the introduction of the Amended Letters Rogatory and that the hearing had proceeded on the assumption that the original Letters Rogatory were valid. She held that requirements of s. 60 had been met in this case, and that if there had been an error at all, it did not go to jurisdiction.
[24] The relevant portions of section 60 of the Evidence Act provide as follows:
- Where it is made to appear to the Superior Court of Justice or a judge thereof, that a court … of competent jurisdiction in a foreign country has duly authorized, by … order or other process, for a purpose for which a letter of request could be issued under the rules of court, the obtaining of the testimony … of a witness out of the jurisdiction thereof and within the jurisdiction of the court or judge so applied to, such court or judge may order the examination of such witness… [emphasis added]
[25] I see no basis for disagreeing with Swinton J.’s conclusion that at the time she granted the September 6, 2001 order it was made to appear that a court of competent jurisdiction in a foreign country had duly authorized, by order, obtaining the moving parties’ testimony. The moving parties cannot demonstrate otherwise. Indeed, they do not purport to do so.
[26] Even if the appearance of a valid request from a foreign court is insufficient of itself to found jurisdiction, absent evidence that the Amended Letters Rogatory did not provide an alternate basis for making the September 6, 2000 order, and absent evidence that the June 22, 2001 order is not effective in accordance with its terms, the fact that Swinton J. may have relied on the wrong order is of no moment on the question of jurisdiction. “A court has jurisdiction to decide wrong as well as right”: McIntosh v. Parent (1924), 1924 401 (ON CA), 55 O.L.R. 552 (C.A.).
[27] In summary, the challenge to the validity of the original Letters Rogatory does not raise a serious issue to be tried, given the subsequent orders of July 21, 2000 and June 21, 2001, and given that Swinton J.’s jurisdiction to make an order based on it being made to appear that a proper order had been issued by a foreign court has not been undermined.
52. ii) Adjournment Request
- [28] I see no basis for either adjourning or entertaining the moving parties’ request for an order dismissing this proceeding. The narrow issue on the appeal to which this motion relates is whether the order dated September 6, 2000 should be set aside based on any of the grounds advanced before Swinton J. on October 10, 2001. If in fact the California action has been dismissed any remedy available to the moving parties must be requested first in the Superior Court.
54. Disposition
[29] For the reasons given, I would dismiss this motion with costs.
Released: January 15, 2002 “JL”
“Janet Simmons J.A.”
“I agree John Laskin J.A.”
“I agree S. T. Goudge J.A.”