SA Horeca Financial Services et al. v. Light

[Indexed as: SA Horeca Financial Services v. Light]

Ontario Reports

Court of Appeal for Ontario,

Weiler J.A. (in Chambers)

November 17, 2014

123 O.R. (3d) 542 | 2014 ONCA 811

Case Summary

Civil procedure — Appeals — Stay pending appeal — Plaintiff obtaining judgment against defendant in Belgium and attempting to enforce it [page543] in U.K. based on representation by defendant's solicitor in 2011 that defendant lived there — Plaintiff discovering that defendant had moved to Canada in or about 2010 — Plaintiff obtaining summary judgment in Ontario recognizing and enforcing Belgian judgment — Defendant appealing — Plaintiff's motion to lift stay on enforcement pending appeal granted to extent that plaintiff was permitted to examine defendant in aid of execution — Plaintiff suffering hardship if stay not lifted — Appeal appearing to be frivolous and vexatious.

The plaintiff obtained a judgment against the defendant in Belgium in 2011 and, after being told by the defendant's solicitor that the defendant was living in London, took steps to enforce the judgment in the U.K. The plaintiff subsequently discovered that the defendant had moved to Canada in or about 2010. It obtained summary judgment in Ontario, recognizing and enforcing the Belgian judgment. The defendant appealed. The plaintiff brought motions to lift the automatic stay on enforcement and for security for costs.

Held, the motion for a stay should be granted in part; the motion for security for costs should be dismissed.

The plaintiff would suffer hardship if the stay were not lifted. It had suffered substantial delay and extra expense in enforcing the judgment owing to the defendant's solicitor's representation that he was still living in London in 2011. The appeal appeared to be frivolous and vexatious. The stay should be lifted to the extent that the plaintiff was permitted to examine the defendant in aid of execution.

While the appeal was frivolous and vexatious, it could not be said that the defendant had insufficient assets in Ontario to pay the costs of an appeal.

Cases referred to

Commission de la Construction du Québec v. Access Rigging Services Inc. (2010), 104 O.R. (3d) 313, [2010] O.J. No. 5055, 2010 ONSC 5897, 7 C.P.C. (7th) 365 (S.C.J.); Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520, [2004] O.J. No. 1700, 239 D.L.R. (4th) 683, 186 O.A.C. 20, 50 C.P.C. (5th) 266, 3 R.F.L. (6th) 387, 130 A.C.W.S. (3d) 850 (C.A.); Siwick v. Dagmar Resort Ltd., 1996 CanLII 407 (ON CA), [1996] O.J. No. 4047, 95 O.A.C. 188, 4 C.P.C. (4th) 1, 66 A.C.W.S. (3d) 1017 (C.A.)

Statutes referred to

Limitations Act, R.S.O. 1990, c. L.15, s. 45(1) (c) [rep. by S.O. 2002, c. 24, Sch. B]

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.], ss. 4, 16(1)(b)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 61.06(1) (a), 63.01(1), (5)

Authorities referred to

Archibald, Todd, Gordon Killeen and James C. Morton, Ontario Superior Court Practice, 2015 Edition (Markham, Ont.: LexisNexis, 2014)

MOTIONS to lift a stay on enforcement of judgment pending appeal and for security for costs in relation to an appeal from the judgment of J.C. Murray J. of the Superior Court of Justice dated August 1, 2014. [page544]

Ruzbeh Hosseini, for moving party.

Safina Lakhani, for responding party.

[1] Endorsement of WEILER J.A. (in Chambers): — On August 1, 2014, SA Horeca Financial Services and SA Horeca Logistic Services ("Horeca") obtained a summary judgment against Mr. Andrew Light. The judgment recognized and enforced the foreign judgment of EUR 214,562.29 that Horeca had obtained against Light in a Belgian court in 2011. Light launched an appeal, triggering an automatic stay on enforcement of the monetary judgment under rule 63.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Horeca now brings these motions to lift the automatic stay on enforcement pending appeal, pursuant to rule 63.01(5), and to obtain security for costs respecting the appeal, pursuant to rule 61.06(1)(a). As an alternative to lifting the stay in its entirety, Horeca asks for an order allowing for an examination of Light in aid of execution.

A. The Factual Background

[2] On March 19, 2008, Horeca brought a lawsuit against Light in Brussels. On April 28, 2011, the Court of First Instance in Brussels rendered judgment against Light. The address Light provided to the court in Brussels at the time litigation commenced was an address in London, England. On May 10, 2011, Light's Belgian solicitor wrote to Horeca, stating, "Please note that I informed the clients to lodge an appeal and I am waiting for their instructions. The decision is not provisionally enforceable. Considering that my clients reside in the United Kingdom, I would appreciate it if you waited for my updated information by the end of the month."

[3] After the expiry of the appeal period, Horeca took steps to enforce the Belgian judgment in the United Kingdom. On July 30, 2012, Horeca obtained a registration order from a U.K. court. In attempting to serve the registration order in August 2012, Horeca learned that Light had sold his property in the United Kingdom in or about 2010 and it was thought he had immigrated to Canada.

[4] Horeca then made efforts to obtain Light's address in Canada. These efforts are detailed in the affidavit of Horeca's managing director, Mr. Michel Haelterman. They include requests to the English solicitors whom Horeca had retained to enforce the judgment in England to try and trace Light's whereabouts, Internet searches, and letters to the Canadian ambassador in Belgium and the Belgian ambassador in Canada requesting assistance. In January 2014, Haelterman learned of Light's [page545] whereabouts while updating his LinkedIn account. Light's name appeared on the running banner on a side of Haelterman's LinkedIn page as being a professional known to him based on the information in his account.

[5] In March 2014, Horeca issued a statement of claim in Ontario seeking to have its judgment recognized and enforced.

[6] In an affidavit dated July 4, 2014, Light swore that he had moved to Toronto in May 2009, and that this fact was readily discoverable by Horeca. Light further swore that he had initially thought the dispute involved some EUR 69,000, not the much larger sum awarded. Shortly after instructing his Belgian solicitor to appeal the Belgian court's decision, Light provided him with his updated contact information and a copy of his permanent residency card. Light said he heard nothing about the proceedings after that and did not think this unusual because his solicitor had told him court proceedings can take a long time. He received further information only in February 2014, when he received a letter dated January 20, 2014 demanding payment of the Belgian judgment.

[7] Haelterman, on behalf of Horeca, acknowledged in his affidavit that as Light had a Belgian solicitor acting for him, and this solicitor's address was the address for service of all proceedings, Light was under no obligation to update the Belgian court as to his address after the start of proceedings. In addition, Haelterman acknowledged that a Belgian counsel has an obligation of professional secrecy and is prohibited from divulging a client's personal information, such as his address.

[8] Horeca, however, relied on Light's solicitor's letter as a representation that Light was still residing in London as of May 10, 2011. Bankruptcy proceedings of a company associated with Light, which concluded at about the same time, also gave a London address for him, albeit not the same one as the address on file with the Belgian court. Haelterman also deposed that Light's LinkedIn account shows that he commenced employment in Toronto in May 2013, and that between September 2009 and August 2012, he was vice president of consulting for Price Waterhouse Coopers at the company's address in Washington, D.C.

[9] When Light was cross-examined on his affidavit and asked to provide a copy of the communication he sent his Belgian solicitor respecting his change of address, he claimed solicitor and client privilege. He acknowledged that his LinkedIn page does not give any indication as to when he added the word "Toronto" to his profile. He has an Internet-based phone by Comwave that does not list via 411. He acknowledged that he had been [page546] terminated from his Toronto job in June 2014. Earlier, he had declined to give an undertaking not to dispose of or encumber any property he owned pending the outcome of the enforcement proceedings against him.

[10] During these proceedings, Light raised a defence and cross-motion seeking to have the action against him dismissed based on the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. His sole argument was that the two-year limitation period in s. 4 applied and that the time to enforce the Belgian judgment had expired on June 19, 2013 (two years after the time for appeal had expired, which was June 20, 2011). He submitted that s. 16(1)(b), which states that "[t]here is no limitation period in respect of, . . . a proceeding to enforce an order of a court, or any other order that may be enforced in the same way as an order of a court", has no application to a foreign judgment. In support of his position, he relied on McLean J.'s decision in Commission de la Construction du Québec v. Access Rigging Services Inc. (2010), 104 O.R. (3d) 313, [2010] O.J. No. 5055, 2010 ONSC 5897 (S.C.J.). That decision held that the two-year limitation period in s. 4 of the Act operates and that the word "judgment" in s. 16(1) (b) does not include a foreign money judgment. He also relied on the decision of this court in Lax v. Lax (2004), 2004 CanLII 15466 (ON CA), 70 O.R. (3d) 520, [2004] O.J. No. 1700 (C.A.), in which Feldman J.A. rejected the submission that the word "judgment" should include a foreign judgment in s. 45(1) (c) (of the Limitations Act, R.S.O. 1990, c. L.15), the equivalent to the present s. 16(1)(b).

[11] The summary judgment judge disagreed with Access Rigging. He held that the word "judgment" in s. 16(1) (b) does apply to a foreign money judgment and that Horeca's action was not statute-barred. In the event he was wrong, the summary judgment judge held that Horeca did not discover its cause of action against Light until August 2012, when it learned that its Belgian judgment could not be enforced in England because he had moved. Although Light swore he had moved to Ontario in 2009, and that his whereabouts in Canada were discoverable after 2009 through various online social networks and Internet searches, the summary judgment judge rejected this submission. He held it would be unconscionable if Light were now permitted to disavow his own false representation, made through his solicitor, that in May 2011 he was living in the United Kingdom. Consequently, if s. 4 applied, Horeca served the statement of claim before the expiry of the two-year limitation period in August 2014.

[12] The evidence and the summary judgment judge's reasons also disclose a second alternative basis on which it could be held [page547] that Horeca's action is not statute-barred. The summary judgment judge noted that pursuant to this court's decision in Lax, the limitation period in Ontario would not commence to run until Light returned to Ontario. As I have indicated, Haelterman deposed that Light's LinkedIn account shows he commenced employment in Toronto in May 2013, and that between September 2009 and August 2012, he was vice president of consulting for Price Waterhouse Coopers at the company's address in Washington, D.C. On the basis of this evidence, Light was not living in Ontario until after August 2012 and, again, the action would not be statute-barred.

B. Lifting the Stay

[13] Rule 63.01(5) gives an appellate court judge discretion to lift a stay imposed by rule 63.01(1) "on such terms as are just". In considering whether to lift a stay, the court should have regard to three principal factors: (i) financial hardship to the respondent if the stay is not lifted; (ii) the ability of the respondent to repay or provide security for the amount paid; and (iii) the merits of the appeal. See Siwick v. Dagmar Resort Ltd., 1996 CanLII 407 (ON CA), [1996] O.J. No. 4047, 95 O.A.C. 188 (C.A.).

[14] In relation to the first requirement, Horeca submits it has suffered prejudice due to having to chase Light through three jurisdictions to enforce its judgment. The second requirement is not in issue as Horeca's counsel undertakes, on behalf of his client, to hold in trust any proceeds realized from lifting the stay pending the appeal's outcome. With respect to the third requirement, Horeca submits that given the strong factual findings of the summary judgment judge, the appeal appears to be frivolous.

[15] Light submits that Horeca has failed to satisfy the first and third conditions. In particular, Light submits there is no evidence that Horeca, a sizable financial institution, has suffered any hardship. Light further points out that just because the ultimate resolution of the appeal may turn on factual findings does not mean it is without apparent merit.

[16] I hold that the first requirement, hardship, has been satisfied. Although Horeca may not be suffering financial hardship in an absolute sense, it has suffered substantial delay and extra expense in enforcing its judgment against Light owing to Light's solicitor's representation that he was still living in London in May 2011. On the third factor, having regard to the summary judgment judge's strong alternate findings, which the evidence seems to amply support, I am of the opinion that the appeal appears to be frivolous and vexatious. The fact that Light has [page548] lost his job and refused to give any undertaking respecting his assets is also of concern to the court. Horeca will have no protection pending the hearing of Light's appeal.

[17] In Ontario Superior Court Practice, 2015 Edition (Markham, Ont.: LexisNexis, 2014), Archibald, Killeen and Morton state that in determining what is "just" in accordance with rule 63.01(5), it is appropriate to consider (i) the grounds of appeal; (ii) the parties' position at trial; (iii) what has happened since the trial; (iv) the general circumstances of the case, including the trial judge's reasons; and (v) the probable delay between trial and appeal that cannot be controlled by the parties. See Ontario Superior Court Practice, 2015, supra, at p. 1740.

[18] Accordingly, I order that the stay pending appeal be lifted to the following extent. Horeca may examine Light in aid of execution. Following examination, in the event that Horeca wishes to take further steps against Light, it may bring a further motion to lift the stay.

C. Security for Costs

[19] Security for costs may be ordered under rule 61.06(1)(a) where "there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal". In this case, Horeca seeks $11,740.68 as security for costs of the appeal.

[20] I have already indicated that I am of the opinion the appeal is frivolous and vexatious. I am not, however, prepared to assume that the appellant has insufficient assets in Ontario to pay the costs of an appeal just because he is no longer an employee. Light's affidavit indicates that he is currently self-employed and that he is doing work under contract. Accordingly, I hold that Horeca has not satisfied the second part of the rule for security for costs.

[21] Horeca's motion for security for costs is dismissed without prejudice to it bringing a further motion once it has conducted an examination of Light in aid of execution.

D. Costs of the Motion

[22] Having regard to the positions of the parties and their costs submissions, costs of the motions are fixed at $2,500, payable by Light to Horeca forthwith.

Order accordingly.

End of Document