CITATION: HSBC Bank USA v. Subramanian, 2007 ONCA 445

DATE: 20070618

DOCKET: C46366

COURT OF APPEAL FOR ONTARIO

DOHERTY, MACPHERSON and CRONK JJ.A.

BETWEEN:

HSBC BANK USA

(Applicant/Respondent)

and

RAVI SUBRAMANIAN

(Respondent/Appellant)

Michael N. Bergman for the appellant

Ray Thapar for the respondent

Heard and Released Orally: June 13, 2007

On appeal from the judgment of Justice Geoffrey B. Morawetz of the Superior Court of Justice dated November 17, 2006.

ENDORSEMENT

[1] The appellant, Ravi Subramanian, appeals the judgment of Morawetz J. recognizing and enforcing the judgment and order of the United States District Court, Southern District of New York against Silverline Technologies Inc. and the appellant as guarantor.

[2] As ultimately argued before this court, the appellant appeals on only one ground – that the motion judge erred in the exercise of his discretion in not granting a stay of enforcement in Ontario until the final decision of the New Jersey Bankruptcy Court.

[3] We disagree. The appellant long ago acknowledged in the New York proceedings that he owed many millions of dollars to the respondent. The judgment giving effect to this acknowledgement is final. The subsequent New Jersey proceedings are collateral.

[4] Moreover, in the New Jersey bankruptcy proceedings, the appellant has lost at every juncture.

[5] The result of this chronology in two U.S. jurisdictions, and its implication for the courts of Ontario is, in our view, well‑described by Morawetz J. at para. 16 of his reasons:

Although Mr Subramanian has a pending appeal to the United States Court of Appeals for the Third Circuit to set aside the default order, the fact remains that, at the current time, the default order remains in effect and there is no stay of enforcement. The Bank is in a position to enforce its judgment in the United States. I do not see why there should be any order in Ontario, which would prevent the Bank from taking the same steps in this jurisdiction.

[6] Indeed, in our view, Morawetz J.’s analysis is made even stronger by the update provided, fairly, by the appellant’s counsel – namely, the New Jersey Bankruptcy Court has refused a stay pending the appeal in that court.

[7] The appeal is dismissed. Costs to the respondent fixed at $6800 inclusive of disbursements and GST.

“Doherty J.A.”

“J. C. MacPherson J.A.”

“E. A. Cronk J.A.”