DIV. COURT FILE NO. 624/04

COURT FILE NO. 98-CV-155389A

DATE: 20041215

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

JUANITA MONTEIRO

Plaintiff/Appellant

• and -

THE TORONTO-DOMINION BANK

Defendant/Respondent

• and -

JOSEPH MONTEIRO, EVELYN MONTEIRO and FRANK MONTEIRO

Third Parties/Respondents

Gregory M. Sidlofsky for the Plaintiff/Appellant

Colin C. Taylor for the Defendant//Respondent

Debra L. Stephens for the Third Parties/Respondents

HEARD: December 8, 2004

Pitt J.

REASONS FOR JUDGMENT

1This is a motion for leave to appeal the decision of Justice J. W. Siegel dated October 5, 2004, dismissing the plaintiff’s motion for summary judgment.

2The jurisdiction to grant leave is section 62.02 (4) of the Rules of Civil Procedure, which provides that:

(4) Grounds on which leave may be granted – Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance, that in his or her opinion, leave to appeal should be granted.

BRIEF SUMMARY OF FACTS AND ISSUES

3Paragraphs 1 to 7 of the motion judge’s endorsement are as follows:

1This is a motion for summary judgment by the plaintiff Juanita Monteiro.

Background

2The plaintiff’s mother, Daisey Monteiro (“Daisey”) executed a will in 1985 (the “1985 will”) and a further will in 1989 (the “1989 will”). The 1989 will left all property to the plaintiff. In 1989, and at the date of her death in 1993, Daisey had an account in Toronto (the “Account”) with the defendant, the Toronto-Dominion Bank (the “T-D Bank” or the “defendant”). At her death, the Account had a balance of U.S. $712,879.12. After her death, the defendant transferred the money to a Swiss bank account in the name of the plaintiff’s brother, Joseph Monteiro (“Joseph”), after receiving instructions to do so from Joseph’s lawyer.

3In 1994, the plaintiff commenced an action in Kuwait, where Daisey resided at the time of her death, and whose law governed the will, to conform the validity of the 1989 will and to confirm Daisey’s ownership of the Account at her death. The action named the plaintiff’s brothers, Joseph and Frank Monteiro (“Frank”) as defendants. Joseph, Frank and Joseph’s wife, Evelyn Monteiro, are collectively referred to as the “third parties”.

4Joseph and Frank dispute the validity of the 1989 will and say that the only valid will is the 1985 will. They also allege that the Account did not belong absolutely to Daisey. They say that their father, Sales Monteiro, who pre-deceased Daisey, had given Daisey a life interest only in the funds which were deposited into the Account with the result that the funds remaining in the Account at Daisey’s death passed to Joseph and Frank by operation of their father’s will.

5In complicated proceedings, the Kuwaiti Court of First Instance ruled the 1989 will to be valid and enforceable. In 1999, the Kuwaiti Court of Cassation, First Personal Status Circuit, an appellate court, (the “Kuwaiti Appeal Court”) upheld the validity of the 1989 will although the court referred to it as a “Donation Contract” rather than a will. This Court in turn referred the determination of the precise assets granted to Daisey under the 1989 will to the Kuwait Experts Department. The Experts Department reported back to the Kuwaiti Appeal Court that the money in the Account belonged to Daisey. Based on those findings, on April 27, 2003, the Kuwaiti Appeal Court ruled that the money in the Account belonged to the plaintiff.

6There is a dispute between the parties as to whether the judgment of the Kuwaiti Appeal Court is final and executable. Joseph and Frank have appealed the decision of the Kuwaiti Appeal Court. The Kuwaiti Court of Cassation, Second Personal Status Circuit, by decision dated June 29, 2003, refused to suspend the decision of the Kuwaiti Appeal Court, First Personal Status Circuit and held the judgment could be enforced. Joseph died on January 12, 2004. In order to pursue the appeal, Joseph’s Kuwaiti counsel requires special powers of attorney.

7The defendant was not a party to the proceedings in Kuwait and did not participate in those proceedings. Accordingly, no order has been made against the defendant in any proceedings in Kuwait. It is important that, in the present action, the plaintiff is not seeking to enforce an in personam judgment of the Kuwaiti courts against the defendant.

4It is useful to add the following uncontested fact that the defendant bank transferred the money to Joseph Monteiro without even notifying the plaintiff, notwithstanding that some months prior to Daisey’s death, the plaintiff provided the defendant with a copy of a general power of attorney that Daisey had executed in favour of the plaintiff since 1983.

5In this action, the defendant has joined the other siblings (the defendants in the Kuwaiti action as third parties) and relies substantially on the third parties’ defence as their own.

6In paragraph 32 of the judgment, the motions judge said:

32An Ontario Court could only give effect to the decision of the Kuwaiti Appeal Court and grant summary judgment in favour of the plaintiff if it is satisfied that the findings in that decision evidence the facts pleaded in the Statement of Claim. In the present matter, however, while the decision of the Kuwaiti Appeal Court determines that the plaintiff has title to the Account, it is unclear whether the related findings of that court in reaching its decision are consistent with the plaintiff’s pleadings that she received the Account upon Daisey’s death in 1993.

7The motions judge denied the relief sought on the ground that

… the defendant and the third parties have established a genuine issue for trial as to whether the decision of the Kuwaiti Appeal Court establishes the facts set out in the Statement of Claim.

8The plaintiff asked that I grant leave on both grounds.

9On the first ground, she finds the decision in conflict with Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] S.C.J. NO. 135 (S.C.C.) and Beals v. Saldana, 2003 SCC 72, [2003] S.C.J. No. 77 (S.C.C.). I am reluctant to grant leave on that ground because of what I consider to be the uniqueness of the case at bar; the defendant not having been a party to the Kuwaiti proceedings.

10On the second ground, however, I start with the proposition in Walker v. Woodstock District Chamber of Commerce, [2000] O.J. No. 1994 (Div. Ct.) Court File No. 199/2000 at para. 13, where Blair J. said:

… In order to grant leave to appeal on the second branch of the Rule, that is, on the ground that there is good reason to doubt its correctness, it is not necessary that I disagree with the reasons of the learned motions judge or that I think they are wrong. It is sufficient to show that the correctness of the order is open to serious debate: Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282, per Farley J. at p. 284.

11It is evident that although the motions judge acknowledged that the Kuwaiti Court found that the plaintiff was entitled to all the property in her mother’s estate, the motions judge looked behind the Kuwaiti decision to consider the basis of its reasoning.

12In Canadian Conflict of Laws [J.G. Castel, Canadian Conflict of Laws (5th Ed.), (Butterworths) p. 14.2] the learned author states:

In considering whether to give effect to a foreign judgment, a court will not consider the merits of the claim or defence or the determinations of the foreign court in reaching its result.

13By looking behind the Kuwaiti Judgment, the motions judge may have led himself into error.

DISPOSITION

14I have good reason to doubt the correctness of the decision, and the proposed appeal involves matters of such importance that, in my opinion, leave to appeal should be granted.

COSTS

15Subject to any agreement between the parties, brief written submissions on costs are to be made within 20 days of the release of these reasons.

Pitt J.