Court of Appeal for Ontario

Citation: Sunlight General Capital LLC v. Effisolar Energy Corporation, 2023 ONCA 133 Date: 2023-03-01 Docket: C70683

Judges: Harvison Young, Thorburn and Copeland JJ.A.

Between:

Sunlight General Capital LLC Plaintiff (Respondent)

and

Effisolar Energy Corporation Defendant (Appellant)

Counsel: Allan Rouben, for the appellant Jessica Wuthmann and David Steinberg, for the respondent

Heard: February 22, 2023

On appeal from the judgment of Justice Markus Koehnen of the Superior Court of Justice, dated April 19, 2022.

Reasons for Decision

[1] The appellant appeals from the judgment of the motion judge, which granted the respondent’s summary judgment motion and recognized and enforced a judgment from the Supreme Court of New York (the “New York judgment”), against the appellant, in the amount of approximately US$1.6 million. The only issue raised on appeal relates to the motion judge’s finding that the Ontario recognition and enforcement action was not statute barred.

[2] After hearing oral submissions from the appellant, we did not call on the respondent and dismissed the appeal, with reasons to follow. These are our reasons.

[3] The dates relevant to the limitation period are as follows:

• On October 18, 2018, the New York judgment for US$1.6 million was issued;

• On May 19, 2019, the appellant’s appeal in New York, of the New York judgment, was administratively dismissed;

• On June 14, 2021, the respondent commenced the action in Ontario to recognize and enforce the New York judgment.

[4] The motion judge found that the limitation period began to run on May 19, 2019, the date that the New York appeal was dismissed. Although the respondent’s recognition and enforcement action was brought outside the ordinary two-year limitation period, the motion judge held that, pursuant to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, O. Reg 73/20, limitation periods were suspended for six months, as a result of the pandemic. Because of the six-month suspension of limitation periods, the motion judge held that the respondent’s action in Ontario was not statute-barred.

[5] The motion judge found that the elements of the test in Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, for recognizing and enforcing a foreign judgment, were met.

[6] The motion judge (1) granted summary judgment in favour of the respondent; (2) ordered that the New York judgment be recognized and given full force and effect in Ontario; (3) ordered the appellant to pay the respondent an amount in Canadian currency sufficient to purchase (approximately) US$2.3 million, being the principal amount of the judgment plus interest; and (4) ordered that the respondent was entitled to enforce the New York judgment in Ontario.

[7] The only issue raised by the appellant on appeal is the start date of the limitation period for recognition and enforcement of the New York judgment. The appellant argues that the motion judge erred in holding that the limitation period began to run on May 19, 2019, the date that the New York appeal was dismissed. The appellant argues that, instead, the limitation period began to run on October 18, 2018, the date that the New York judgment was issued.

[8] We reject this argument for two reasons.

[9] First, the appellant did not raise this argument before the motion judge. Before the motion judge, the appellant argued that the Ontario recognition and enforcement action was statute barred only on the basis that, according to the appellant, O. Reg. 73/20 was not applicable in the circumstances of this case, and thus, the respondent did not benefit from its six-month extension of limitation periods. The motion judge rejected that argument. The appellant does not pursue this argument on appeal.

[10] As the motion judge noted, before him, based on the principles established by this court in Independence Plaza 1 Associates L.L.C. v. Figliolini, 2017 ONCA 44, 136 O.R. (3d) 202, at para. 3, the parties agreed that “the limitation period on the enforcement of a foreign judgment begins to run from the date on which the right of appeal in respect of that judgment expires, the date on which the appeal is decided, or the date on which the appeal is dismissed.” The parties also agreed that the appellant’s appeal in New York was dismissed on May 19, 2019.

[11] The appellant now seeks to resile from its agreement that the principles from Independence Plaza apply to determine the date that the limitation period on an action to enforce a foreign judgment begins to run. In our view, it is not appropriate to permit the appellant to change on appeal the basis on which the motion was argued below.

[12] Second, the appellant requested, pursuant to s. 13 of the court’s Practice Direction Concerning Civil Appeals, that this appeal be heard by a panel of five judges in order to reconsider Independence Plaza. In particular, the appellant sought reconsideration of the holding in Independence Plaza that, in the usual case, it will not be legally appropriate to commence a proceeding in Ontario to enforce a foreign judgment “until the time to appeal the judgment in the foreign jurisdiction has expired or all appeal remedies have been exhausted” (at para. 77). The request to convene a five-judge panel was refused by the Associate Chief Justice. In light of that refusal, this panel will not reconsider the holding in Independence Plaza. We are not persuaded that there are grounds to revisit this recent and considered decision of this court.

[13] The motion judge did not err in determining the date the limitation period began to run in accordance with the principles in Independence Plaza.

[14] The appeal is dismissed.

[15] The parties agreed on the quantum of costs of the appeal: $24,000, inclusive of disbursements and applicable taxes. We do not accept the appellant’s argument that the successful respondent should be denied costs of the appeal due to late filing of its responding material, which caused no prejudice. The appellant shall pay costs of the appeal to the respondent in the amount of $24,000, inclusive of applicable taxes and disbursements.

“A. Harvison Young J.A.”

“J.A. Thorburn J.A.”

“J. Copeland J.A.”