Supreme Court of Canada

Dovenmuehle, Inc. v. The Rocca Group Inc., [1982] 2 S.C.R. 534

Date: 1982-10-07

Dovenmuehle, Inc. Appellant;

and

The Rocca Group Inc. Respondent.

File No.: 16684.

1982: October 7.

Present: Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK

Judgments and orders—Enforcement of foreign judgment—Validity of foreign judgment dependant on respondent’s voluntarily submitting to its jurisdiction—Motion to dismiss for want of jurisdiction only procedure available in foreign court to a party not submitting to its jurisdiction—Motion dismissed and default judgment later issued—Whether or not respondent’s action sufficient to warrant foreign judgment not being enforced—Foreign Judgments Act, R.S.N.B. 1973, c. F-19, s. 2(c)(ii).

APPEAL from a judgment of the New Brunswick Court of Appeal (1981), 1981 CanLII 3564 (NB CA), 34 N.B.R. (2d) 444, 85 A.P.R. 444, allowing an appeal from a judgment of Barry J. allowing appellant’s action to enforce a foreign judgment. Appeal dismissed.

T.B. Drummie, Q.C. and D.P. Pappas, Q.C., for the appellant.

Mark Giberson, for the respondent.

The judgment of the Court was delivered orally by

DICKSON J.—It will not be necessary to call upon you Mr. Giberson. We adopt the following passage from the judgment of the Court of Appeal of New Brunswick at page 439 of the case:

In my opinion, the Act must be interpreted as would any other New Brunswick statute. Having regard to the plain meaning of the words of s. 2(c)(ii) of the Act, I think there can be no doubt that, as a matter of New Brunswick law, the appearance entered and the motion made by counsel for Rocca in the Illinois Court cannot be said to have been made “without protest” as contem-

[Page 535]

plated by that section of the. Act, and that Rocca’s appearance entered in the Illinois Court merely to protest the jurisdiction of that Court did not amount to its voluntary submission to that Court’s jurisdiction.

The appeal is accordingly dismissed with costs.

Judgment accordingly.

Solicitors for the appellant: Clark, Drummie & Company, Saint John.

Solicitors for the respondent: Palmer, O’Connell, Leger, Turnbull & Turnbull, Saint John.