Court of Appeal for Ontario
Before: Epstein, Pepall and Benotto JJ.A.
Between
Howard Kavoussi, The Estate of Key Kavoussi, deceased, by her Executor Howard Kavoussi and Iran Kavoussi
Respondents
and
Bernd Moos
Appellant
Counsel:
Bernd Moos, acting in person
Kevin D. Sherkin and Ryan Wozniak, for the respondents
Heard and released orally: March 12, 2015
On appeal from the order of Justice Carole J. Brown of the Superior Court of Justice, dated April 29, 2014.
ENDORSEMENT
1In July 2009, the respondents sued the appellant in California for damages based on fraud and negligent misrepresentation. In January 2010, the appellant, who resides in Ontario, unsuccessfully challenged the jurisdiction of the California court, a decision that was not appealed. The appellant then participated in the trial by defending the respondents’ action on its merits. The trial resulted in a judgment in March of 2012, of approximately $3,000,000. The appellant’s appeal from that judgment was dismissed in October 2013. His attempt to have the dismissal reviewed by the Supreme Court of California was dismissed in January 2014.
2The respondents commenced this action for, among other relief, enforcement of the judgment in Ontario.
3The respondents moved for summary judgment. Problems arose out of the appellant’s attempts to file additional materials. On January 6, 2014, the motion judge ordered that the appellant not be allowed to file additional material in response to the motion for summary judgment and adjourned the motion to be heard by her.
4In her reasons of March 28, 2014, the motion judge applied the test for recognition of a foreign judgment articulated by the Supreme Court in Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416. She held that the appellant had attorned to the California court, the judgment was final and that the appellant had not established any applicable defences including that the judgment had been obtained by fraud or that he was not afforded a process in accordance with Ontario’s minimum standards of fairness or that the judgment was obtained on laws contrary to the fundamental morality of the Canadian legal system.
5The motion judge therefore concluded that there was no issue requiring a trial and ordered that the California judgment be recognized and enforced in Ontario.
6On appeal, relying on his proposed fresh evidence, the appellant urges us to find that the California judgment was obtained by fraud.
7The appellant’s argument depends on our admitting the fresh evidence. This we cannot do. First, the motion judge refused to allow the appellant to submit this same evidence for the purposes of the summary judgment motion. That orderwas not appealed and is final. Second, the proposed evidence does not meet the Palmer test.
8We see no reason to interferewith the motion judge’s decision to enforce the California judgment and the appeal is therefore dismissed.
9The respondents are entitled to their costs fixed in the amount of $7,000, inclusive of disbursements and applicable taxes.
“Gloria Epstein J.A.”
“S.E. Pepall J.A.”
“M.L. Benotto J.A.”
