Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220408 DOCKET: C69579

MacPherson, Paciocco and George JJ.A.

BETWEEN

Michael L. Goguen Plaintiff (Respondent)

and

Amber Laurel Baptiste and Every Girl Counts LLC Defendants (Appellants)

Counsel: Symon Zucker and Nancy J. Tourgis, for the appellants Monique Jilesen and Sahar Talebi, for the respondent

Heard: April 4, 2022

On appeal from the orders of Justice Cory A. Gilmore of the Superior Court of Justice, dated May 17 and June 25, 2021.

Reasons for Decision

[1] The appellants Amber Baptiste and Every Girl Counts LLC appeal from two orders of Gilmore J. of the Superior Court of Justice. The result of the first order dated May 17, 2021 was to grant summary judgment to the respondent Michael Goguen that recognized a judgment in his favour by a California court. The result of the second order dated June 25, 2021 was to allow the respondent to enforce the California judgment and seize money (more than $7 million) located in Alberta, not Ontario.

[2] In its appeal material, including factum, the appellants advance two grounds of appeal: (1) the motion judge should have stayed the respondent’s motion for default judgment pending the hearing of an appeal that they had launched relating to the California judgment; and (2) the motion judge erred by making an order relating to the appellant Baptiste’s funds in a CIBC bank account in Alberta.

[3] By the time the appeal was argued in this court, the California Court of Appeal had dismissed the appellant’s appeal of the California decision on the basis of the appellant’s failure to file a brief after notice was given under the California Rules of the Court (California Court of Appeal Order dated August 10, 2021). Accordingly, at the appeal hearing in this court, the appellants abandoned their first ground of appeal and proceeded only with their ground of appeal relating to the jurisdiction of the Ontario Superior Court to make an order relating to Baptiste’s funds in a CIBC account in Alberta.

[4] The appellants’ position is that they are not residents of Ontario, have no connection with Ontario and, importantly, have no assets in Ontario. They admit that Baptiste has assets in Alberta (the CIBC bank account) and say that any enforcement of the now final California order must take place in Alberta.

[5] We do not accept this submission, essentially for two reasons, one factual and the other legal.

[6] The factual reason is that, at the time Goguen brought his application for a Mareva injunction in the Superior Court, which was granted by Conway J. on September 15, 2020, there was evidence that Baptiste had assets in Ontario. In a Wells Fargo wire transfer from California, the recipient is identified as Amber Baptiste, a resident of California, who has an account at the CIBC on Bay St. in Toronto. The amount of the transfer was $9,700,000. In addition, the respondent had no knowledge of whether Baptiste had any assets in Canada outside of Ontario.

[7] The second reason for not accepting the appellants’ submission is that, in our view, the motion judge was correct to conclude, in her enforcement reasons and draft order, that the Ontario court had in personam jurisdiction over both Baptiste and CIBC – Baptiste because of the factual background that the motion judge outlined in her recognition endorsement and CIBC because of its head office in Ontario. Against this backdrop, it was irrelevant that, apparently, Baptiste had transferred some or all of her funds to a CIBC branch in Alberta.

[8] In our view, the motion judge identified and correctly applied Chevron Corp. v. Yaiguaje, 2015 SCC 42, in reaching her decision. In Chevron, Gascon J. said at paras. 56, 57 and 69:

Requiring assets to be present in the jurisdiction when recognition and enforcement proceedings are instituted is also not conducive to order or fairness. For one thing, assets such as … bank deposits may be in one jurisdiction one day, and in another the next.

In today’s globalized world and electronic age, to require that a judgment creditor wait until the foreign debtor is present or has assets in the province before a court can find that it has jurisdiction in recognition and enforcement proceedings would be to turn a blind eye to current economic reality.

Facilitating comity and reciprocity, two of the backbones of private international law, calls for assistance, not barriers.

[9] In our view, the motion judge’s reasoning and decision are closely aligned with the Chevron framework. She concluded:

The Defendant’s insistence on registration of the judgment in Alberta would impose a needless administrative burden on the Plaintiff given the jurisdiction this Court has over the Defendant and the Bank, the notice given and the consent of the institution (whose head office is in Ontario).

[10] The appeal is dismissed. The respondent is entitled to its costs of the appeal fixed at $10,000, inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“David M. Paciocco J.A.”

“J. George J.A.”