DATE: 20001110

DOCKET: C33770

COURT OF APPEAL FOR ONTARIO

RE: LOREN GIRSBERGER (Plaintiff/Respondent)

v. JOHN KRESZ (Defendant/Appellant)

BEFORE: FINLAYSON, LABROSSE and WEILER JJ.A.

COUNSEL: Paul B. Schabas,

for the appellant

Jonathan C. Lisus,

for the respondent

HEARD: October 31, 2000

On appeal from the order of Justice Peter A. Cumming dated February 2, 2000

E N D O R S E M E N T

[1] The appellant (“Kresz”) appeals the order of Cumming J. (the “motions judge”) dismissing the motion to set aside the judgment of Epstein J. dated May 29, 1998 and allowing the cross-motion of the respondent (“Girsberger”) to amend the judgment to accord with s. 121 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[2] In October 1991 Girsberger was awarded damages for tortious interference with contract and defamation in the State of Illinois in the amount of U.S. $778,056. The Appellate Court of Illinois confirmed the judgment in 1993.

[3] Shortly after recovering judgment, Girsberger sued Kresz in Manitoba on the Illinois judgment. Kresz did not defend the action on the merits. He relied on a now repealed provision of a former Manitoba act that entitled a party to relitigate the original cause of action in defence of a claim on a foreign judgment. He was later described by Epstein J. as hiding behind a now repealed and anachronistic law.

[4] In 1997, Girsberger discovered that Kresz had assets in Ontario. He commenced an action against Kresz on the Illinois judgment. Kresz moved to stay the Ontario action on the basis of jurisdiction and failed. On May 29, 1998, Epstein J. declared the Illinois judgment valid and enforceable in Ontario and granted summary judgment for the $889,862.65 claimed.

[5] Subsequently, the Ontario judgment was registered against Kresz’s properties in Manitoba and in British Columbia. His motions to set aside the registration of the judgment were dismissed in both provinces. His appeal to the Manitoba Court of Appeal was also dismissed.

[6] Both the motions judge in the present proceedings and in the Manitoba court found that Kresz chose not to raise any defence on the summary motions for “strategic reasons”. On this issue we note the affidavit evidence submitted on behalf of Kresz by an articling student to the effect that Kresz had advised him that he, Kresz, had been informed by his then counsel that he had no defence. We give this double hearsay evidence little weight as we also note that Kresz himself has not filed any affidavit material to that effect.

[7] In the six years between the date of the Illinois judgment and the date of the Ontario action, the value of the Canadian dollar fell sharply. On December 2, 1998, Girsberger moved before Epstein J. to amend the summary judgment to accord with the currency conversion provided by s. 121(1) of the Courts of Justice Act. Epstein J. was satisfied that the judgment reflected her intentions as defined by the pleadings and dismissed the motion on the basis of the wording of the statement of claim. Section 121(1) had not been pleaded.

[8] On April 15, 1999, Girsberger moved before Cameron J. to amend the statement of claim to include reference to s. 121(1). Kresz was unsuccessful in his opposition and the motion to amend was granted.

[9] Kresz then delivered a notice of intent to defend and a statement of defence based on s. 45(1)(c) of the Limitations Act, R.S.O. 1990, c. L.15. This was the first time that a defence had been raised, some fourteen months after issuance and entry of Epstein J.’s May 29, 1998 judgment which has not been appealed. Kresz also moved to have the judgment set aside.

[10] In addressing these issues Cumming J. dealt with the numerous grounds raised by Kresz in the motion. They included whether the amendment to the statement of claim to provide reference to s. 121(1) entitled Kresz to raise a limitation defence to a valid judgment, what limitation period would apply if the judgment were set aside and as of what date, and are there special circumstances justifying an extension of the limitation period in the present case.

[11] Cumming J. essentially resolved all the issues in favour of Girsberger. He dismissed Kresz’s motion to set aside the judgment and granted the amendment to accord with s. 121(1). Kresz appeals. The same arguments are raised on this appeal.

[12] In our view, the issue of whether the amendment to plead s. 121(1) entitles Kresz to raise a limitation defence is determinative of this appeal. Section 121(1) states that:

121(1) Foreign money obligations — Subject to subsections (3) and (4), where a person obtains an order to enforce an obligation in a foreign currency, the order shall require payment of an amount in Canadian currency sufficient to purchase the amount of the obligation in the foreign currency at a bank in Ontario listed in Schedule I to the Bank Act (Canada) at the close of business on the first day on which the bank quotes a Canadian dollar rate for purchase of the foreign currency before the day payment of the obligation is received by the creditor.

[13] On the motion for summary judgment, Kresz failed to provide evidence and failed to attend the hearing on the return of the motion. The motions judge concluded that (1) he chose not to defend the motion after receiving counsel’s advice; (2) it appeared that he chose not to do so for strategic reasons; and (3) no satisfactory explanation has been given for the failure to raise the limitations defence. Kresz had ample opportunity to raise this new defence prior to and at the time of the summary judgment. As stated earlier, this summary judgment was validly granted and there has been no appeal.

[14] More importantly, the amendment is not for the purpose of claiming further damages. It added nothing of substance to the judgment. The current provision in s. 121(1) simply brought the damages into conformity with the amount awarded in the original Illinois judgment. It also brought the award into conformity with the declaration of Epstein J. that the U.S. judgment was valid and enforceable in Ontario.

[15] The amendment to the statement of claim did not introduce a new cause of action. It did not confer any rights upon Kresz which he did not have prior to the amendment nor, as the motions judge noted, was there any prejudice to Kresz. Kresz has always been aware of the original amount awarded in the Illinois judgment and the currency conversion only brings the amount in conformity with the damages awarded. We see no error in the exercise of the motions judge’s discretion on this issue.

[16] In light of our conclusion, it is not necessary to deal with the other issues raised on this appeal.

[17] Accordingly, the appeal is dismissed with costs.

(signed) “G. D. Finlayson J.A.”

(signed) “K. M. Weiler J.A.”

(signed) “J. M. Labrosse J.A.”