CITATION: Stern Estate v. Solehdin, 2011 ONCA 286
DATE: 20110413
DOCKET: C51845 & C51846
COURT OF APPEAL FOR ONTARIO
Weiler, Simmons and Epstein JJ.A.
BETWEEN
Susan Stern, Estate Trustee of the Estate of Benjamin Stern, Deceased and Meyer Gindin
Applicants (Respondents)
and
Nizar Solehdin and Yasmeen Solehdin
Respondents (Appellants)
AND BETWEEN
Capital One, National Association formerly known as Hibernia National Bank
Applicant (Respondent)
and
Nizar Solehdin and Yasmeen Solehdin
Respondents (Appellants)
D. Brent McPherson, for the appellants
Raymond F. Leach and Michael A. Polvere, for the respondents
Heard: April 7, 2011
On appeal from the judgments of Justice Lynne C. Leitch of the Superior Court of Justice, dated March 2, 2010.
ENDORSEMENT
[1] The respondents were awarded summary judgment in the Louisiana Bankruptcy Court against the appellants on their personal guarantees in support of a loan to a company in Louisiana that subsequently went bankrupt. The respondents applied to have those judgments recognized and enforced in Ontario. The appellants did not dispute that there was a real and substantial connection to Louisiana. They argued that the Louisiana Bankruptcy Court lacked subject matter jurisdiction to decide the issue of whether the guarantors were liable on their guarantees and that that issue should have been decided in the Louisiana State court. Leitch J. dismissed this argument.
[2] In Louisiana, Mr. Solehdin had filed a motion seeking to have the action heard in the State Court and had specifically raised the issue of the Louisiana Bankruptcy Court’s subject matter jurisdiction. The Louisiana Bankruptcy Court denied the motion and held it had subject matter jurisdiction. Mr. Solehdin did not appeal this order. Leitch J. held that the issue of jurisdiction had specifically been decided in Louisiana and that the issue was moot. The appellants submit that she erred in doing so. They submit that on the state of the existing law the originating court must have jurisdiction and that as a matter of general principle the enforcing court must inquire into the originating court’s jurisdiction over the subject matter.
[3] Having regard to the fact that the appellants participated in the Louisiana proceedings, specifically raised the issue of the Louisiana Bankruptcy Court’s subject matter jurisdiction, and failed to appeal the Louisiana Bankruptcy Court’s determination that it had subject matter jurisdiction, we are of the opinion that it was not open to the appellants to re-litigate the issue of subject matter jurisdiction in Ontario.
[4] Accordingly, we would dismiss the appeals. Costs of each appeal are to the respondents. The amount fixed on consent is $14,000, including disbursements and applicable taxes.
“Karen M. Weiler J.A.”
“Janet Simmons J.A.”
“Gloria Epstein J.A.”