Endorsement

COURT FILE NO.: CV-12-454948
DATE: 20120926
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Thora De Abreu, Plaintiff

AND:
Norma Bayley , Defendant

BEFORE: Carole J. Brown J.

COUNSEL: Michael D. Magonet , for the Plaintiff

Norma Bayley , representing herself

HEARD: September 26, 2012

ENDORSEMENT

[ 1 ] The applicant, Thora De Abreu ("Ms. De Abreu" or “the applicant”) brings this application as against Norma Bayley ("Ms. Bayley" or “the respondent”) for judgment based on the judgment obtained by Ms. De Abreu against Ms. Bayley on January 23, 2012 in the Québec Court Civil Division, inclusive of interest and special indemnity, and the sum of $1081.20 awarded in costs in favor of the applicant in the Province of Québec and taxed by the Quebec Court on February 1, 2012 in this amount.

[ 2 ] The applicant caused a civil claim to be issued by the Québec Court, Civil Division, which was founded on a contract of loan due on demand made by the applicant to the respondent in the amount of $30,000, which amount the respondent admitted owing. The claim was for repayment and reimbursement of the monies loaned in the principal sum of $30,000, which remained outstanding and owing to the applicant. The applicant resided at all material times in Montréal, Québec, while the respondent resided in Pickering, Ontario.

[ 3 ] The applicant attempted to serve the respondent personally with a civil claim at her last known address in Pickering. The Affidavit of Attempted Service of the process server indicates that he attempted to serve Ms. Bayley on August 6, 2009, and was advised by an adult female individual residing at the residence, 531 McLeod Crescent, Pickering, Ontario, that Ms. Bayley had previously resided with her and had moved out one month prior to the date of attempted service. Service was also made by registered mail at the same address. The Affidavit of Attempted Service and the registered mail receipt directed to the respondent at 531 McLeod Crescent, Pickering, Ontario were produced in evidence before me. Further, the applicant obtained an order of the Québec Court Civil Division for service on the respondent by special mode of service by way of a newspaper notice, and did so on August 3 and 24, 2011. The notice published on August 3, 2011, spelled the name of the respondent incorrectly, using "Bailey" rather than "Bayley", which was corrected in the notice of August 24, 2011. Both notices stated that " Order is given to Norma Bayley to appear at the Montréal Courthouse situated at 1, Notre Dame Street East, in Montréal, Québec, the 21st day of October 2011 at 9:00 AM in room 2.06. Failing to appear may result in a judgment by default."

[ 4 ] The respondent did not defend the civil claim. Based on the evidence provided by the applicant, the Québec Court, Civil Division ordered the respondent, to pay to the applicant the sum of $30,000 with interest at the published legal rate plus special indemnity provided for in article 1619 of the Civil Code of Québec from the date of the letter of demand, dated June 2, 2009, as well as costs as taxed by the Québec Court, Civil Division,. The total amount awarded by the Court, including repayment of the loan, interest and special indemnity, and costs as taxed by the Court, is $35,952.70. To date, this amount remains outstanding and unpaid. There is no appeal pending.

[ 5 ] Both Ms. De Abreu and Ms. Bayley were present in Court for this application hearing, Ms. De Abreu represented by counsel, and Ms. Bayley representing herself. Ms. Bayley argued that she had not been properly served. She did confirm that her address was, at the material time, and remains 531 McLeod Crescent, Pickering, Ontario. She had no explanation as to why the process server would have been advised when he attempted personal service, that she no longer resided at that residence and had moved out one month prior to the attempted service. While she confirmed having been served with the Québec judgment, which she stated was done in June of 2012, she did not seek to have the judgment appealed or set aside, nor did she seek legal advice with respect thereto. She sought to have the judgment set aside or reversed by this Court, at this hearing, and was advised that the Ontario Courts do not have appellate jurisdiction over Québec courts.

[ 6 ] In Ontario, the means of enforcement of foreign judgments is governed, in part, by the Reciprocal Enforcement of Judgments Act , R. S. O. 1990, c. C. 43, s.129 (3), and, in part, by the common law. The Act is available for and applies to the judgments of all Canadian provinces and territories, with the exception of Québec. With respect to judgments issuing from Québec, the common law applies to recognition of said judgments in Ontario. The common law regarding the recognition and enforcement of foreign judgments provides that one province should enforce and recognize the judgment given by a Court in another province or territory, provided that (i) the Court had jurisdiction in the action; (ii) the judgment was properly obtained in accordance with the rules of the foreign court and not by fraud; and (iii) the foreign court adhered to the principles of natural justice: Moreguard Investments Limited v De Savoye , 1990 29 (SCC) , [1990] 3 S. C. R. 1077; Beals v Saldana 2003 SCC 72 () , [2003] 3 S. C. R. 416; Pro Swing Inc. v Elta Golf Inc. 2006 SCC 52 () , [2006] 2 S. C. R. 612. Based on the materials before me, including the documents filed with and judgment issued from the Québec Court, Civil Division, and based on the submissions of the parties, I am satisfied that the judgment issued from the Québec Court Civil Division was obtained in accordance with the rules of the Québec Court, that the civil claim was duly served in accordance with the Rules of Civil Procedure of Québec and the Order for substituted service from that Court, and that the principles of natural justice were respected.

[ 7 ] Accordingly, I grant judgment to the applicant, Thora De Abreu, based on the judgment of the Québec Court Civil Division, in the total amount of $35,952.70.

[ 8 ] I invite the parties to provide me with submissions regarding costs, limited to three pages with bill of costs, within 10 days of the release of this Endorsement.

Carole J. Brown

Date: September 26, 2012