Court File and Parties

COURT FILE NO.: 07-CV-335287PD1

DATE: 20121109

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALEXANDRE VAN DAMME

Applicant

– and –

NAHUM GELBER and GASIUNASEN GALLERY OF PALM BEACH, INC.

Respondents

Jeff Galway, for the Applicant (Moving Party)

Ian Godfrey & Ryan Treleaven, for Nahum Gelber, Respondent

HEARD: July 24, 2012

mr. justice lederer:

Introduction

[1] The applicant, Alexandre Van Damme, believes that, during the month of February 2007, he agreed to purchase a painting from the respondent, Nahum Gelber. The respondent denies that there was such an agreement and, over the intervening years, has refused to deliver the painting to the applicant. The parties have taken this issue through a series of court proceedings in both Ontario and the state of New York. The applicant believes that, through a series of decisions and orders, the New York State Court has determined that the painting was sold to him and should be delivered. The painting is in Toronto. It is being kept here pursuant to an order of this court made on August 7, 2007. By this motion, the applicant seeks an order that the decision, made in New York, requiring the delivery of the painting be enforced in Ontario. The respondent does not agree that the matter has been finally determined and says that, if it has, that determination should not be enforced here. The applicant seeks to enforce the New York judgment, not by launching a new action and seeking judgment, but by asking that the order of August 7, 2007 be varied to allow for release of the painting.

[2] Ultimately, the court is a place to resolve issues. Its processes are not to be used by parties to delay acceptance of what the law directs. It is not a place to “rag the puck” (a term used in ice hockey to indicate a deliberate tactic intended to use up time).

Background

[3] The applicant says that, on January 31, 2007, the respondent, Gasiunasen Gallery of Palm Beach Inc.(“Gasiunasen”), acting as agent for Gelber, entered into an agreement to sell a painting by Gerard Richter. The agreement was with Tricolat Fine Art (“Tricolat”) which, in turn, executed a bill of sale with Van de Weghe Fine Art (“Van de Weghe”). Tricolat was an intermediary between Gasiunasen and Van de Weghe. Van de Weghe was the agent for the ultimate purchaser, the applicant, Van Damme. The applicant wired the money to pay for the painting to the bank of Gelber’s agent, Gasiunasen, which, in turn, delivered it to Gelber’s bank. Gelber refused to deliver the painting and is said by Van Damm to have breached the contract. Gelber took the position that Gasiunasen was not his authorized agent and that Gasiunasen signed the contract without his knowledge or permission. Gelber contends that he was not a party to and is not bound by the agreement (see: Order and Memorandum Decision of the Honourable Bernard J. Fried, dated July 7, 2009, Supreme Court of the State of New York-New York County Index Number: 601995/2007, at p. 3).

[4] During the month of June 2007, Van Damme commenced an action in New York against Gelber and Gasiunasen. In this action, Van Damme sought an order, among other things, directing Gelber to deliver the painting.

[5] Shortly thereafter, Van Damme brought an application in this court because the painting was located in Toronto. This application was for an order for the custody or preservation of the painting pending resolution of the action in New York. Van Damme followed this with a motion for an interlocutory injunction to restrain Gelber from moving the painting to a location outside of Ontario. At the same time, Gelber brought a cross-motion to dismiss or, in the alternative, stay the application on the basis that Ontario should refuse to take jurisdiction over the matter as New York was available as a more appropriate forum to resolve the dispute (forum non conveniens).

[6] The motion and cross-motion were heard but, before a decision was rendered, Gelber and Van Damme agreed on the terms of an order that resolved both motions. It required Gelber to take no steps to sell, pledge or otherwise dispose of the painting. It was not to be moved, without the consent of Van Damme, and in no event to be taken outside Ontario. Van Damme was to pay (CDN) $2,820,000 into court as security for his undertaking as to damages which might result from the issuance of the order. The order allowed for a representative of Van Damme, upon notice, to inspect the painting once every six months. Costs of the motion were to be in the cause in the litigation of the underlying dispute with the successful party being entitled to have them assessed by a taxing officer of the Ontario Superior Court (see: Order of the Honourable Mr. Justice T. Ducharme, dated August 7, 2007).

[7] At the conclusion of all pre-trial discovery in the New York action, Van Damme and Gelber each made a motion for summary judgment. Van Damme sought summary judgment ordering Gelber to deliver the painting. Gelber sought summary judgment dismissing Van Damme’s complaint. In a decision, released on July 7, 2009, Justice Fried of the New York Supreme Court found that Gasiunasen was the agent of Gelber. He dismissed the motion of Gelber and granted the motion brought by Van Damme (see: Order and Memorandum Decision of the Honourable Bernard J. Fried, July 7, 2009, supra, at p. 13). This was followed by the “formal order granting summary judgment”, dated July 31, 2009 (see: Affidavit of Jon Paul Robbins, sworn October 6, 2011, at para. 12). This order awarded specific performance of the contract and reasonable attorneys’ fees in respect of the motion for summary judgment (see: Order of the Honourable Bernard J. Fried, dated July 31, 2009).

[8] Gelber has not accepted this decision and, in the months and years since its release, has been at pains to find a way to have it set it aside.

[9] Following the entry of the order of Justice Fried granting summary judgment to Van Damme, Gelber moved to renew the summary judgment motions. By order, dated March 11, 2010, and entered on March 15, 2010, the motion was denied. The “new facts” on which the motion was based related to “third-party Gasiunasen’s 1983 testimony given in Toronto, Canada, in connection with a receivership proceeding before the Supreme Court of Ontario”. The reasons go on to say “... there has been no affirmation submitted by defendant’s original counsel... explaining why this publicly available information was not obtained” and “there has not been stated the circumstances under which this so-called newly discovered evidence allegedly came to the defendant’s attention” (see: Order of the Honourable Justice Bernard J. Fried, dated March 11, 2010).

[10] Gelber then appealed the order of Justice Fried granting summary judgment to the Appellate Division of the Supreme Court (the intermediary appellate court in the state of New York). Its decision and order, dated December 14, 2010, unanimously affirmed the lower court ruling. This decision observed that “...[t]he record evidence demonstrates that Gelber expressly and impliedly appointed defendant Gasiunasen Gallery to act as his agent with regard to the sale of a painting by Gerhard Richter, and thus became obligated under the contract of sale to deliver the painting upon his agent’s receipt of the full purchase price..... To the extent Gelber averred otherwise in support of his cross motion for summary judgment, his statement was self-serving and tailored to avoid the consequences of his earlier deposition testimony, and hence was insufficient to raise a triable issue of fact...” (see: Decision and Order of the Supreme Court, Appellate Division, dated December 14, 2010).

[11] Gelber then sought leave to appeal to the Court of Appeals. In an order, dated March 29, 2011, this motion was also denied. Not content with this, Gelber moved for re-argument of the motion for leave to appeal. This motion was also heard by the Court of Appeals and by order dated June 9, 2011 was denied.

[12] Gelber had no further right of appeal (see: Affidavit of Jon Paul Robbins, sworn October 6, 2011, at para. 18).

[13] It was submitted, on behalf of Van Damme, that, as a result, the New York courts have made a final determination that he is the “ultimately successful” party in regard to his dispute with Gelber. In Van Damme’s view, the New York courts have held that Gelber was required to deliver the painting in exchange for the purchase price, less his (Van Damme’s) New York legal fees.

[14] On or about November 15, 2011, Gelber brought a motion to vacate the order of Justice Fried, dated July 7, 2009, which had granted Van Damme summary judgment. The motion was founded on the proposition that Van Damme lacked standing to assert any rights to the painting. The motion was heard by Justice Fried on December 22, 2011. He denied the motion and directed judgment be entered against Gelber requiring him to deliver the painting to Van Damme. In rendering this decision, Justice Fried made clear his view that the argument, made on behalf of Gelber, that Van Damme had no standing to bring the summary judgment, had “absolutely no merit”. He held:

Sequence number 13 is defendant Gelber's motion to vacate my July 7, 2009, order. The basis of this motion is that allegedly the record demonstrates that Van Damme was not the contractual assignee me of the rights to purchase the painting at issue here, and because the orders at issue is [sic] therefore based upon ‘mistaken information’ it should be vacated under Section 5105 a 3 of the CPLR.

To me, there is absolutely no merit to this argument. First, the defendant and his representatives were in possession of all the information since the ancillary proceedings in 2007.

Second, in 2009 I rejected defendant counsel's request to file a supplemental affidavit dealing with the standing claim.

Third, while this issue is clearly raised on appeal, the Appellate Division in its 2010 decision refused to consider the standing claim as unpreserved, but nevertheless wrote that were we to consider this argument, we would reject it.

Moreover, the Court of Appeals has twice denied Mr. Gelber leave to appeal.

Accordingly, I am denying the motion to vacate.

[Emphasis added]

(Transcript of argument before Justice Fried on December 22, 2011, at pp. 31-32)

[15] Judgment against Mr. Gelber was entered with the Supreme Court: New York County on December 28, 2011. It provides, in part:

ADJUDGED, that defendant Nahum Gelber is enjoined and directed to release the Painting to plaintiff Alexandre Van Damme upon payment by Alexandre Van Damme of the amount of 2 million euros to Nahum Gelber, less the amount of legal fees awarded by this Court for services of Van Damme’s New York counsel, in the amount of $448,419.00, in accordance with this Court's Order and Decision entered on July 8, 2009, as amended by this Court's Order and Decision entered on March 15, 2010, and as further amended by this Court's Order and Decision entered on [September 26, 2011], and as further amended by this Court's Order and Decision entered on December 22, 2011, severing the issue of Van Damme’s Canadian fees (the ‘Purchased Price’), such release to be made within thirty (30) days after service of notice of entry hereof and tender of such payment; for purposes of this Judgment the word ‘tender’ shall mean notification by Van Damme’s counsel, MacLaughlin & Stern, by email to Gelber's counsel, Edward Normand, Esq., Boies, Schiller & Flexner, LLP at [email address] that Van Damme consents to the release of said payment to Gelber from the escrow amount in the amount of $2,820,000.00 Canadian, currently held in escrow by the Ontario Superior Court of Justice pursuant to the order of Justice T. Ducharme dated August 15, 2007 upon the release of the Painting to Van Damme, and the return to Van Damme of the balance of funds held in said escrow account.

(Judgment of Justice Fried entered on December 28, 2011)

[16] By letter, dated December 29, 2011, in compliance with the terms of this judgment, the U.S. Counsel for Van Damme tendered payment to Gelber in respect of the painting.

[17] On January 25, 2012, Gelber filed a Notice of Appeal from the judgment. It appeals from:

…the Judgment…entered on December 28, 2011, which grants partial summary judgment on Plaintiff’s second and fourth causes of action in the amended complaint, and from each and every intermediate order therein, including the Orders entered December 27, 2011, denying Gelber's motion to vacate the Court's Order dated July 7, 2009, and granting Plaintiff's motion to sever the issue of Canadian attorneys’ fees.

(Notice of Appeal to the Appellate Division of the Supreme Court of the State of New York, dated January 25, 2012)

[18] Gelber had until October 25, 2012 to perfect the appeal, at which point the appeal would be “calendered” for argument.

[19] I digress from the immediate implications of a continuing appeal before the New York Courts to note the impact the timing of the perfecting of the appeal will have on any expectation of when this matter will be resolved. The calendar for the New York Appellate Court shows that, in order to be placed on the calendar for the December 2012 term, the last term for this year, Gelber would have had to perfect his appeal by October 1, 2012. If he waited until October 25, 2012, which is the last day on which the appeal could be perfected, it will not be argued until 2013. I cannot know whether, in the time since the argument of this motion, the appeal has been perfected. If it has not, one might wonder if the time the appeal will take should contribute to a determination that Gelber is intent on delay, rather than moving to a final resolution of this dispute.

Analysis

[20] As it is, the continuing appeal would appear to suggest that that there is still life in the proceedings in New York and that, as a result, it would not be appropriate to enforce the judgment of Mr. Justice Fried until after the appeal has been heard and any decision rendered. Counsel for Gelber noted that the order of this Court, dated August 7, 2007, prohibited any movement of the painting until the dispute between the parties was “resolved” or until further order of the court. On behalf of Gelber, it is said that because of the ongoing appeal, the dispute has not been resolved. To hear an application for recognition and enforcement of the New York judgment in these circumstances would be to render moot the mechanism chosen by the parties to preserve the status quo. It is submitted that this court ought to stay the application until there has been a final or ultimate resolution of the dispute, meaning until all appeals from the New York judgment been exhausted.

[21] The problem with this is that it would seem that there is no stay of enforcement in the New York proceeding. On December 20, 2011, Gelber filed another motion for summary judgment in the New York action. On January 6, 2012, he filed another motion, this time to vacate the judgment. These motions were heard by Justice Fried on March 21, 2012. He dealt with them on that day. The transcript from the hearing of March 21, 2012 makes clear that, in the view of Justice Fried, there was no stay in place as a result of the appeal that had been brought by Gelber in respect of the judgment of December 28, 2011. The judge observed that “...[t]here is no stay available under article 55, section 5519 in the CPLR”. He went on to explain that “... [t]here’s no stay of enforcement under 5519, because that section requires that the property at issue be placed in the custody of the court of original instance, and that’s this Court as I see it.... it makes no sense to argue that that court is Ontario.” (see: Hearing Transcript before the Hon. Bernard J Fried, March 21, 2012, at pp. 16, 19 and 21). Justice Fried concluded that there was no stay in effect (see: Hearing Transcript before the Hon. Bernard J Fried, March 21, 2012, at pp. 20, 21 and 22).

[22] This is consistent with the practice statute applicable in New York, the Civil Practice Law and Rules (“CPLR”). It outlines the rules for obtaining a stay of enforcement of a judgment, without an order of the court, while an appeal is pending. When the losing party, in this case Gelber, does not want to deliver personal property which the judgment requires him to hand over, he must obtain a stay of enforcement. He may do so by satisfying one of two possible conditions: (i) he may place the personal property in the custody of an officer designated by the court of original instance (in this case, the court in New York) to abide by the direction of the court to which the appeal is taken; or (ii) he may post an undertaking, in a sum fixed by the court of original instance, that he will obey the direction of the court to which the appeal is taken (see: CPLR 5519 at (a) 4 and for confirmation see: 12 Weinstein-Korn-Miller, New York Civil Practice CPLR 5519.01 (“Stay Available Pending Appeal...”)).

[23] Justice Fried, in saying there was no stay in effect, did note that he was not an appellate judge. He said:

To me, and again I'm not an Appellate Judge, the court of original instance is New York County Supreme Court where judgment was entered and to me it makes no sense to argue there’s a stay in effect. That's my opinion and that may or may not be what the Appellate Division First Department concludes.

(Hearing Transcript before the Hon. Bernard J Fried, March 21, 2012, at p. 21)

[24] To find there was a stay where, relying on the applicable rule of civil practice, the judge in the court of original instance determined that there was no stay would render the New York rules meaningless. The need for a stay only arises with the commencement of an appeal. In this case, there is no ruling of an appellate judge and the pre-conditions required for a “Stay without court order” (see: CPLR 5519 (a)) have not been met.

[25] This being so, to ask the court in Ontario to impose a stay is to provide Gelber with an advantage he would not have in the New York court, where the merits of the dispute have been considered and a determination made. Although counsel, on behalf of Gelber, made contrary submissions to which I shall return later in these reasons, to me, the order of August 7, 2007 does nothing more than protect the painting until the court in New York has dealt with the substance of the dispute. In the circumstances, I cannot see why a stay which does not exist there should be recognized here:

The preservation of enforceability of the judgment in the foreign jurisdiction, notwithstanding a pending appeal, is an additional important and relevant, but not essential, factor. If the judgment may be enforced in the foreign jurisdiction there is no sound reason of justice why it should not be enforced in Ontario; to do so in this jurisdiction requires a judgment creditor to proceed by action, whatever may be procedural recourse in the foreign country.

(Four Embarcadero Ctr. Venture v. Mr. Greenjeans Corp. 1988 CarswellOnt 378, at para. 81)

[26] I find that there is no stay in place which would act as an impediment to an order enforcing the various orders and judgment of Mr. Justice Fried.

[27] It is submitted, on behalf of Gelber, that, in the event this Court decides to issue an order for the enforcement of the New York judgment, any such determination of this Court should, itself, be stayed pending the outcome of the appeal in New York. In making this submission, counsel for Gelber relies on the case of Four Embarcadero Ctr. Venture v. Mr. Greenjeans Corp., supra. In that case, the plaintiff brought actions to enforce judgments against defendants in various proceedings in California. The defendants, in three Ontario actions, moved for an order striking out the statements of claim and for summary judgment dismissing the claims. The defendants argued that the judgments in California were under appeal and, accordingly, were not final. The plaintiff submitted the California judgment was final and could be the foundation for the actions in Ontario. The court found that:

It is self-evident that from a practical standpoint, any judgment for the payment of money is not ‘final’ in the sense that if an appeal is pending, it may be varied or set aside by the appellate Courts. Anglo-Canadian law nevertheless treats it as final, for the purpose of enforcement by action, of the debt or money judgment. Recognition of the defendants’ potential success on appeal which may vacate or vary the judgment, is a factor that the Ontario Court will take into account in the final disposition of the Ontario action at the conclusion of the trial if the appeal in the foreign Courts has not been determined, to protect the rights of the defendant-appellant by staying execution of the judgment until the outcome of the appeal is known; or alternatively if the appeal succeeds, to conform to the final disposition of the foreign appellate court.

(Four Embarcadero Ctr. Venture v. Mr. Greenjeans Corp., supra, at para. 76)

[28] This does not mean that, in every circumstance where there is no stay, the court will allow for enforcement but stay that determination until after the appeal in the foreign jurisdiction has been completed and determined. The question of whether, in such circumstances, a stay will be granted, is a matter of judicial discretion (see: Arrowmaster Inc. v. Unique Forming Ltd., 1993 CanLII 5510 (ON SC), [1993] 17 O.R. (3d) 407, at para. 34).

[29] In Arrowmaster Inc. v. Unique Forming Ltd, supra, a company incorporated in Illinois sued a company incorporated in Ontario. The court in Illinois awarded judgment in favour of the Illinois corporation. The unsuccessful Canadian defendant appealed. After the appeal had been argued, but before a decision was rendered, the American plaintiff commenced an action, in Ontario, to enforce the Illinois judgment. It brought a motion for summary judgment. The defendant submitted that the motion for summary judgment be stayed and, alternatively, if it was granted, that its enforcement be stayed. The ground for both of these lines of defence was the same – the completed argument and pending decision on the appeal. The court granted summary judgment and went on to consider whether its execution should be stayed. The defendants contended that they had prosecuted their appeal without delay ("vigorously") and that the results would be known soon. In such circumstances, it would be unfair to permit execution on the judgment from Illinois.

[30] In considering this submission, the court made a reference to Battle Creek Toasted Cornflakes Co. v. Kellogg Toasted Cornflakes Co. (1923), 55 O.L.R. 127 (H.C.J.) as approved by Talsky v. Talsky (No. 2) (1973), 1973 CanLII 834 (ON CA), 1 O.R. (2d) 148, at pp. 153-54, 39 D.L.R. (3d) 516 (C.A.); International Corona Resources Ltd. v. Lac Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.), at pp. 261-62; and, 820099 Ontario Inc. v. Harold E. Ballard Ltd. (1991), 49 C.P.C. (2d) 239 (Ont. Div. Ct.), at pp. 243-44. In that case, a distinction was drawn between a situation where the refusal of the stay would render the outstanding appeal nugatory and a circumstance where both parties would suffer some loss if the stay was either granted or refused. In the case I am asked to deal with, there is no suggestion that the appeal presently underway in New York will be rendered meaningless if there is no stay and Gelber is allowed to execute on the judgment he presently holds. The picture, if it changes hands, could always be returned. This would certainly be true if the return of the picture was made subject to a condition that it not be sold or moved pending the determination of the appeal by the court in New York. The same finding was made in Battle Creek Toasted Cornflakes Co. v. Kellogg Toasted Cornflakes Co., supra. In that case, there was no evidence that a refusal of the stay would render the appeal nugatory. As there, the court here is left to consider the respective loss by the parties if, while they await the results of the appeal, the stay is, on the one hand, granted or, on the other hand, refused.

[31] In Arrowmaster Inc. v. Unique Forming Ltd, supra, the court picked up the observation in Battle Creek Toasted Cornflakes Co. v. Kellogg Toasted Cornflakes Co., supra that this amounts to a determination of the “balance of convenience” and goes on to comment on how this had been dealt with in the intervening years. The court rejected the idea that, in considering the balance of convenience, it could and should examine the substance of the appeal. “…For a motions judge to look inside a commercial contract and try to interpret its terms, and then analyze it, even in a cursory fashion, under the law of a foreign jurisdiction, is simply not realistic or... desirable” (see: Arrowmaster Inc. v. Unique Forming Ltd, supra, at para. 26). The court accepted as crucial in determining whether a stay should be granted “...the hardship to or the prejudice to be suffered by the respective parties if a stay be granted or refused” (see: Arrowmaster Inc. v. Unique Forming Ltd, supra, at para. 27 quoting from International Corona Resources Ltd. v. Lac Minerals Ltd., supra, at p. 255).

[32] This leads back to a consideration as to what will happen if the picture is or is not delivered to Van Damme while the parties await the results of the ongoing New York appeal. The loss to Van Damme is more time without the completion of a contract he, seemingly, entered into and expected would have been completed more than five years ago. There is no harm to Gelber in maintaining possession while there is an outstanding judgment saying the picture no longer belongs to him. It could be said that, while the appeal is extant, the shadow of delay may lie to the detriment of Gelber. He could succeed in the appeal.

[33] On this basis, there appears to be little that distinguishes between interests of the parties while the picture remains where it is under the conditions put in place by the order of this court made on August 7, 2007. On this basis, it would be as well to refuse the stay and leave the picture where it is pending the results of the appeal.

[34] This is not the end of the issue. In Arrowmaster Inc. v. Unique Forming Ltd, supra (at para. 27), the judge added “one other particularly important factor, namely, the chronology and conduct of the litigation in the foreign jurisdiction, especially with respect to the appeal component of the litigation”. This raises the question of whether Gelber has proceeded with his various appeals, not in a good faith effort to resolve the matter but, rather, to delay its resolution. Has he been and is he continuing to “rag the puck”?

[35] Counsel for Gelber denies this. Rather, he argued that Gelber has been mistreated by the court in New York. He submitted that, regardless of the outcome of the appeal, this court should not allow for the execution, in Ontario, of the judgment made in New York. Counsel submitted that this court should recognize:

• that Van Damme was without standing to bring the action in New York;
• that the Court, in New York, was without jurisdiction to consider the matter;
• that the proceeding in New York denied natural justice to Gelber and breached Ontario public policy; and,
• that, in the circumstances, this court should consider a new defence based on the proposition that the court, in New York, has failed to treat this court with the “comity” required. (“Comity” refers to “the courtesy between nations, as in respect shown by one country for the laws and institutions of another” (see: Random House Webster’s College Dictionary-On Line)).

[36] I will consider each of these ideas in the order they are listed.

Standing

[37] As a general statement, “standing” refers to the right of a party to make a legal claim or seek judicial enforcement of a right (see: Morden & Perell, The Law of Civil Procedure in Ontario, First Edition, LexisNexis Canada Inc. 2010, at p. 297 quoting Soldier v. Canada (Attorney General), 2009 MBCA 12, [2009] M.J. No. 32, at para. 29 (Man. C.A.) in turn quoting Black’s Law Dictionary, Eighth Edition).

[38] Counsel, on behalf of Gelber, says that Van Damme does not have standing to bring the action in Ontario because there was no privity of contract between them. He relies on the proposition that “...only a party to a contract can enforce the contract” (see: Fenrich v. Wawanesa Mut. Ins. Co., 2005 ABCA 199, [2005] 256 D.L.R. (4th) 395, at para. 26 (Alta. C. A.); Budget Rent-a-Car of B.C. v. Vancouver Int’l Airport Authority, 2009 BCCA 22, [2009] 89 B.C.L.R. (4th) 249, at para. 60 (B.C.C.A.); Berry v. Indian Park Assn., 1999 CanLII 1294 (ON CA), [1999] 44 O.R. (3d) 301, at para. 30 (Ont. C.A.); Chambers v. HSBC Securities (Canada) Inc. 2003 CarswellOnt 3363 at paras. 21-24 (Ont. Sup. Ct.)). There was no contract signed between Van Damme and Gelber and, as counsel sees it, no assignment between Van Damme and the two others who were the intermediate purchasers of the painting: Tricolat, who purchased it from Gelber, and Van de Weghe, who purchased it from Tricolat. This is not a question of standing. The issue is whether Van Damme had acquired the right to ownership of the painting. There is no question but that Van Damme had the right to come to court and ask for a determination of that issue. The allegation of an absence of privity is nothing more than a defence to a claim to enforce a contract.

[39] In reality, Gelber is asking this court to re-litigate an issue which has already been determined. The court, in New York, ruled that the appropriate contractual relationship existed between the parties. Contrary to the position taken by Gelber, the court found that Gasiunasen was the agent of Gelber and, as such, was authorized to sell the painting. Gelber was not named as a party, but the contract was clear that the contracting parties (the agents) were acting on behalf of their respective principals (see: Order and Memorandum Decision of the Honourable Bernard J. Fried, July 7, 2009, supra, at pp. 3 and 5). “Evidence in the record conclusively establishes that Gelber consented to the sale of the Painting, and that he authorized Gasiunasen to act as his agent for doing so” (see: Order and Memorandum Decision of the Honourable Bernard J. Fried, July 7, 2009, supra, at p. 6).

[40] It is not for this court to re-visit the correctness of the determination of the court in New York that Gelber was obliged to deliver the painting to Van Damme. The role of this court is not to re-determine the merits of the underlying contract claim that gave rise to the New York judgment but, rather, to assess whether Van Damme is the beneficiary of a foreign judgment and whether the prerequisites for recognition and enforcement of that judgment are satisfied. It is the submission that these issues should be reconsidered which raises the spectre that this is really an attempt by Gelber to extend a game that he has already lost.

Jurisdiction

[41] Counsel for Gelber takes the position that the New York court was without jurisdiction to deal with the issues raised in the action it considered and decided. Moreover, it is said that efforts were made to raise this issue and were rejected. As a result, this submission was never properly considered by the court in New York.

[42] I confess to difficulty in understanding how this position can stand in the circumstances of this case. As has already been noted, the decision in New York substantiates the validity of the contract. It was entered into, on behalf of Gelber, by his authorized agent. The agreement provided:

This transaction shall be governed by and construed in accordance with the laws of the State of New York without giving effect to its choice of law rules. In the event of a dispute the parties consent to the exclusive jurisdiction of the state and federal courts sitting in the State of New York. This Agreement will be construed without regard to any presumption or rule of construction to the effect that a written agreement will be construed against the party that drafted such agreement. The parties hereto consent and submit to the jurisdiction of the state and federal courts sitting in the State of New York.

[43] Moreover, there is the cross-motion brought by Gelber in response to the motion brought by Van Damme seeking custody and preservation of the painting. The cross-motion was dated July 25, 2007. It sought to stay or dismiss the Ontario action and asserted, among other things, that Ontario was “...forum non conveniens and New York is the more appropriate forum in which to resolve the dispute between the parties”.

[44] Finally, Gelber, by his actions in the New York proceeding, gave further indication of his having attorned to the jurisdiction of the court:

• He filed a defence to a claim on its merits.
• He initiated summary judgment motions in the New York action seeking dismissal of that action on its merits.
• He contested the merits of the summary judgment brought by Van Damme in the New York action.
• He pursued a cross-claim against Gasiunasen and a third-party claim against its principal in respect of matters directly relevant to the transaction at issue in the New York action.

[45] The recent case of Club Resorts Limited v. Van Breda 2012 SCC 17 does nothing to suggest that these traditional indicators of attornment have become ineffective:

From this perspective, a clear distinction must be maintained between, on the one hand, the factors or factual situations that link the subject matter of the litigation and the defendant to the forum and, on the other hand, the principles and analytical tools, such as the values of fairness and efficiency or the principle of comity. These principles and analytical tools will inform their assessment in order to determine whether the real and substantial connection test is met. However, jurisdiction may also be based on traditional grounds, like the defendant's presence in the jurisdiction or consent to submit to the court's jurisdiction, if they are established. The real and substantial connection test does not oust the traditional private international law basis for court jurisdiction.

[Emphasis added]

(Club Resorts Limited v. Van Breda, supra, at para. 79)

[46] It is in the face of this evidence that Gelber asserted he was never given the opportunity to contest jurisdiction in the foreign court as he would have been able to in Ontario. It is difficult to understand how this argument can be made when Gelber himself proposed that Ontario was forum non conveniens and the finding that, through his agent, he consented to the jurisdiction of the New York court. Nonetheless, it was submitted, on Gelber’s behalf, that he attempted to do so “using every procedural mechanism available to him”. In response to the complaint, Gelber filed a threshold motion to dismiss the complaint on jurisdictional grounds. He argued that he was not subject to the “personal jurisdiction” of the New York court. It was determined that Van Damme, as the plaintiff, had made “a sufficient start” at establishing a basis for personal jurisdiction over Gelber so as to warrant full discovery. After discovery, Gelber filed a further motion arguing there was no basis for jurisdiction over him. The court held that Gelber had consented to personal jurisdiction through the agreement of his authorized agent.

[47] Counsel for Gelber submitted that it cannot be said that his client ever consented to the jurisdiction of the New York court because he was required by its rulings to proceed with discovery and its consideration of the merits in the absence of any final determination of the issue of jurisdiction. What this fails to acknowledge is that the question on which the issue of jurisdiction, as raised by Gelber, revolved was whether Gasiunasen was his authorized agent. Gelber understood this. His affidavit, sworn on October 25, 2007, in support of the motion that the action be dismissed because he was not subject to the jurisdiction of the New York courts says, at paras. 57-59:

57. The only basis alleged by Van Damme for this Court’s jurisdiction over me is the “consent” provision in the Contract of Sale.

58. I am not a party to, and I am not otherwise bound by, the Contract of Sale.

59. Accordingly, I am not subject to personal jurisdiction in this Court.

[48] The argument made was that the contract could not be relied on as demonstrating the parties’ agreement to submit to the jurisdiction of the courts in New York because it was Gasiunasen that had made the agreement when he was not the authorized agent of Gelber. In other words, the issue was precisely the same as the one which determined the merits of the case. If Gasuniasen was not the agent of Gelber when the contract was made, not only would the contract fail to demonstrate submission to the jurisdiction of the courts in New York, there was no agreement to sell the painting. Be that as it may, there would still be a demonstration of submission to the courts in New York through the argument, made on behalf of Gelber, that Ontario was a forum non conveniens leaving it for the matter to be determined in New York.

[49] In the end, this is nothing more than another attempt by Gelber, this time as a threshold jurisdictional issue, to look behind the finding made by the court in New York that Gasiunasen was the authorized agent of Gelber. The public policy issue is not, as Gelber’s counsel would have it, whether Gelber was permitted to question jurisdiction, but how long the court will allow him to continue attempting to re-litigate this issue before requiring him to accept its findings.

Natural Justice and Public Policy Defences

[50] Not only does Gelber say that Van Damme lacked standing and the court in New York lacked jurisdiction, it is also submitted that the process in New York was unfair and violated the “basic principles of justice”. The foundation of this is the proposition that, as counsel for Gelber sees it, the summary judgment process in New York does not adhere to the same standards as found in Rule 20 of the Ontario Rules of Civil Procedure.

[51] It was argued that natural justice was denied in that findings of fact were made in the New York action without recourse to a trial and in a fashion that amounts to a breach of public policy in Ontario. These facts led to the finding that Gasiunasen was the authorized agent of Gelber which, as we have seen, is the foundation on which the overall decision in the case was based.

[52] In making this submission, reference was made to Lloyd’s v. Meinzer (2001), 2001 CanLII 8586 (ON CA), 55 O.R. (3d) 688, 210 D.L.R. (4th) 519. This case arose from what the Court of Appeal referred to as a “worldwide investment disaster”. Lloyd’s, the iconic British insurance market, suffered unexpected losses as a result of claims made in respect of asbestos exposure and other “long tail risks”. As a result, cash calls were made to the “names”, those that invested in the insurance sold through the market that Lloyd’s provides. Some did not respond to the call. Lloyds’s made the payments through a fund kept for the purpose. It then entered into a Reconstruction and Renewal Plan. It included a reinsurance scheme which required all names, including those that did not accept the scheme, to pay premiums to cover the cost of the reinsurance. Lloyd’s sued the recalcitrant names in the High Court of Justice in the United Kingdom. It succeeded and then brought an action here to enforce the British judgment in Ontario. The names objected, in part, on the basis that there had been a denial of natural justice in the English proceeding. In this regard, counsel for Gelber made reference to the following:

…The appellants say that these findings were made either without any evidence or by choosing from conflicting evidence and that to do so without a trial is a denial of natural justice. They submit that ‘[o]n a plain reading of the judgment, it is plain that there was a genuine issue for trial’.

(Lloyd’s v. Meinzer, supra, at para. 40)

[53] On behalf of Gelber, it was submitted that proceeding in this fashion was contrary to the procedure under Rule 20 of the Rules of Civil Procedure.

[54] Lloyd’s v. Meinzer, supra, was decided in 2001, which is to say before the 2010 amendments to Rule 20. With those amendments, the test has changed. The question to be answered is whether there is an issue “requiring” a trial rather than a “genuine issue for trial”. Today, a judge considering a motion for summary judgment is permitted to determine credibility (see: Rule 22.04(2.1) of the Rules of Civil Procedure). It stands to reason that a judge may decide facts and, relying on those findings, determine cases without resort to a trial. In any case, in Lloyd’s v. Meinzer, the submission was not accepted. There had been no reference to the record to justify the position taken on behalf of the parties opposing enforcement of the judgment on the basis of a denial of natural justice:

First, the appellants did not make any reference to the record to demonstrate which facts were contested in the record before the English court. Nor did they refer to the record to demonstrate a lack of evidence. The specifics of which purely factual findings may have been in dispute is unclear.

(Lloyds v. Meinzer, supra, at para. 41)

[55] In this case, Gelber is unhappy with the findings made by the New York court. This does not mean that the court was not justified in coming to the findings it made, failed to consider all of the evidence provided or did not understand the concerns raised in making these findings on a motion for summary judgment without a trial. It is clear that the judge in New York understood all of this. He noted, in part:

Evidence in the record conclusively establishes that Gelber consented to the sale of the Painting, and that he authorized Gasiunasen to act as his agent in so doing. Moreover, contrary to Gelber’s contention, the record contains sufficient evidence to warrant the granting of summary judgment in Van Damme’s favor, even in the absence of evidence by way of affidavit (Olan v Farrell Lines Inc., 64 NY2d 1092, 1093 [1985] [defendant entitled to summary judgment although supporting proof consists of attorney affidavit annexing plaintiff’s deposition testimony and other proof rather than an affidavit of fact on personal knowledge]; EBC Ambro Asset Mgt. Ltd. v Kaiser, 256 AD2d 161, 161 [1st Dept 1998] [same]; Josephson v Crane Club, 264 AD2d 359, 360 [1st Dept 1999] [deposition testimony constitutes admissible evidence by someone with personal knowledge of the facts]).

At his deposition, Gelber's testimony establishes that he authorized Gasiunasen to sell the Painting on his behalf. For example, Gelber testified that ‘[b]ased upon my experience on wire transfers from the U.S. to Monaco, that inasmuch as the funds had been wire transferred on February 5th that the money would arrive either that day or the day following, being February 6th (Dep. Tr. at 132). Gelber testified that he did not question why the funds had been sent first to Gasiunasen’s bank, and then to his bank, rather than directly to his bank (Dep. Tr. at 133). Gelber answered affirmatively to questions as to (1) whether he wanted a document prepared that confirmed that Gasiunasen sold the Painting for his account for € 2 million, and that he instructed that, upon receipt of the funds, ‘they are to arrange for the release of the painting’ (Dep. Tr. at 135); (2) whether he ‘authorized the Gasiunasen Gallery to sell a Richter for 2 million euros,’ but ‘subject to certain conditions’ (Dep. Tr. at 155); and (3) whether he deemed himself committed to the release of the Painting to any entity that Gasiunasen directed, had he received the € 2 million prior to the Sotheby’s auction (Dep. Tr. at 176).

To be sure, in his affidavit sworn November 12, 2009, Gelber emphatically states, on page three, that: ‘Gasiunasen is not, and never was, my agent.’ Although issues of fact and credibility may not be ordinarily determined on a motion for summary judgment, where a self-serving affidavit statement by a party clearly contradicts that party’s own deposition testimony, and can only be considered to have been tailored to avoid the consequences of the earlier testimony (see deposition testimony excerpts, above), such affidavit is insufficient to raise a triable issue of fact to defeat a summary judgment motion (Phillips v Bronx Lebanon Hosp., 268 AD2d 318, 320 [1st Dept 2000]). This is especially true here where Gelber's conclusory denial that he authorized Gasiunasen to act as his agent in selling the Painting not only contradicts his deposition testimony, it also contradicts other statements in that very same affidavit.....

Order and Memorandum Decision of the Honourable Bernard J. Fried, dated July 7, 2009, at pp. 6-7)

[56] The Supreme Court of Canada has stressed the limited nature of the natural justice defence in proceedings to enforce a foreign judgment:

A domestic court enforcing a judgment has a heightened duty to protect the interests of defendants when the judgment to be enforced is a foreign one. The domestic Court must be satisfied that minimum standards of fairness have been applied to the Ontario defendants by the foreign court.

The enforcing court must ensure that the defendant was granted a fair process. Contrary to the position taken by my colleague LeBel J., it is not the duty of the plaintiff in the foreign action to establish that the legal system from which the judgment originates is a fair one in order to seek enforcement. The burden of alleging unfairness in the foreign legal system rests with the defendant in the foreign action.

Fair process is one that, in the system from which the judgment originates, reasonably guarantees basic procedural safeguards such as judicial independence and fair ethical rules governing the participants in the judicial system. . . .

[Emphasis added]

(Beals v. Saldana, 2003 SCC 72, [2003] 3 S.C.R. 416, at paras. 60-62)

[57] The restrictive scope of both a natural justice or public policy defence has been reiterated, in this court as follows:

The defence of natural justice does not relate to the merits of the claim. Rather it is about the procedure or process by which the foreign court arrived at its judgment, for example some failure of the Canadian standard of due process. For the Defendant to succeed on this line of defence, the foreign court must have offended the Canadian concept of natural justice. Similarly, to succeed in a public policy defence, the defendant must satisfy the court that the judgment of the foreign court was based on the foreign law that is contrary to the fundamental morality of the Canadian justice system, for example the judgment was the result of bias or corruption. The defendant bears the onus of proof in both instances.

(Sincies Chiementin S.p. A. v. King, 2010 ONSC 6453, [2010] O.J. No. 5124 (S.C.J.), at para. 194)

[58] The procedures in the foreign court, in this case the courts of the State of New York, need not replicate the procedures followed in Canada in order to meet the minimal standards of procedural fairness or conform to the requirements of Ontario public policy. There is nothing inherently unfair or contrary to Ontario concepts of public policy in judicial determinations being made based on transcripts and a written record, by an impartial decision-maker, following an adequate opportunity to be heard. There is no reason to find that there was a denial of natural justice in the proceedings undertaken in New York.

[59] The question remains what would be the outcome of a determination that the court in New York had denied Gelber natural justice or had acted contrary to Canadian public policy. It would require the court to look behind the findings made in New York. This argument is another attempt to get this court to re-investigate the finding that Gasiunasen is the agent of Gelber and that Gelber is bound by the contract Gasiunasen entered on his behalf.

The New Defence

[60] The judgment to be enforced is non-monetary. The traditional common-law rule was that “...[a] foreign judgment in personam given by a court of competent jurisdiction [was] enforceable provided that it [was] final and conclusive, and for a definite sum of money” (see: J.-G. Castel and J. Walker, Canadian Conflict of Laws (6th ed. (loose-leaf)), at para. 14.6 as quoted in Pro-Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at para. 10). “...[A]bsent evidence of fraud or of a violation of natural justice or public policy, the enforcing court is not interested in the substantive or procedural law of the foreign jurisdiction in which the judgment sought to be enforced domestically was rendered” (see: Pro-Swing Inc. v. Elta Golf Inc., supra, at para. 12). I pause to observe that there was no suggestion of fraud in this case and to repeat there was no breach of natural justice or public policy.

[61] Since the decision of the Supreme Court of Canada in Pro-Swing Inc. v. Elta Golf Inc., supra, Canadian courts will also enforce non-monetary judgments. In providing for the enforcement of equitable orders, the court underscored “the need to incorporate the flexibility that infuses equity” and went on to observe that:

…conditions for recognition and enforcement can be expressed generally as follows: the judgment must have been rendered by a court of competent jurisdiction and must be final, and it must be of a nature that the principle of comity requires the domestic court to enforce. Comity does not require receiving courts to extend greater judicial assistance to foreign litigants than it does to its own litigants, and the discretion that underlies equitable orders can be exercised by Canadian courts when deciding whether or not to enforce one.

(Pro-Swing Inc. v. Elta Golf Inc., supra, at para. 31)

[62] In referring to “comity”, the court acknowledged the respect to be offered to the foreign court and its limits. It is the existence of these limits that are at the foundation of the new defence counsel for Gelber submits should be imposed. “They are the most recognizable situations in which an injustice may arise but are not exhaustive”:

Unusual situations may arise that might require the creation of a new defence to the enforcement of a foreign judgment. However, the facts of this case do not justify speculating on that possibility. Should the evolution of private international law require the creation of a new defence, the courts will need to ensure that any new defences continue to be narrow in scope, address specific facts and raise issues not covered by the existing defences.

(Beals v. Saldanha, [2003] 3 S.C.R. 414, at paras. 41 and 42)

[63] From this foundation, counsel for Gelber suggests a new defence to a request for the recognition of foreign judgments – the comity defence. It would apply where the foreign court has failed to properly recognize and respect the orders of the Canadian court. In this case, it is proposed that the New York court has not given the order of this court dealing with the custody and preservation of the painting the comity required. This concerns the view that the court in New York failed to give any weight to the Ontario order in considering the issue of which court had jurisdiction to deal with the matter. Not content with the finding made by the New York court that Gusiunasen was his agent and that, as a result, he is bound by the contract of sale and its binding the parties to the laws of New York, Gelber seeks to have this court create a new defence that will require it to look behind the determinations made in New York.

[64] There is no merit to this position and no reason for this court to recognize the defence proposed. The application brought, in Ontario, by Van Damme was solely to preserve the status quo pending resolution of the proceedings in New York. This court was not asked to assume jurisdiction over the underlying dispute. The order dealing with the custody and preservation of the painting (August 7, 2007) was made on consent following submissions but before any decision was forthcoming. It was designed to ensure the painting would be preserved while the contract claim proceeded in the court in New York. To the extent that it says anything with respect to jurisdiction, it is the following:

8. THIS COURT ORDERS that this Order is without prejudice to any arguments either party may make with respect to the jurisdiction of any court in the state of New York or elsewhere to hear this matter.

9. THIS COURT ORDERS that the parties shall not seek to put this Order into evidence or to otherwise refer to the contents of the Order in any proceeding before court in the state of New York or elsewhere. Notwithstanding the above, the parties may answer or respond to any question in relation to the subject matter of the Order which is posed by a court of competent jurisdiction in the state of New York or elsewhere.

[65] In other words, while it recognized that the court in New York may ask questions, the thrust of the order is precisely the opposite of what is being proposed on behalf of Gelber. The order, by its terms, was to have no impact on any question of jurisdiction raised by the parties before the court in the state of New York. Reliance on comity would direct that the court in New York was not to take account of the order in any consideration it gave to the question of jurisdiction. As it is, the thrust of the decision of the court in New York with respect to jurisdiction arose from its finding that Gasiunasen was the agent of Gelber.

Conclusion

[66] This takes me back to my earlier determination that there was little to choose between the two parties in considering “the balance of convenience” in staying or not staying any order allowing for enforcement of the judgment made in New York. I left this consideration to examine how Gelber has proceeded with his appeals. To my mind, every action taken by Gelber since the determination granting summary judgment to Van Damme has been directed to setting aside the finding that Gasiunasen was his agent. In this motion, there are four separate arguments all directed to that one point: no standing, no jurisdiction, an offence to natural justice and public policy as well as the proposal for the new defence.

[67] This was preceded by the lengthy and continuing efforts of Gelber to keep that issue before the courts in New York, as follows:

Route 1:

Gelber moved to renew the summary judgment motions. This was refused.

Route 2:

Gelber appealed the decision granting Van Damme summary judgment. This was refused by the Appellate Division of the Supreme Court of New York on December 14, 2010. The decision confirmed that Gelber had appointed Gasiunasen as his agent.

Gelber sought leave to appeal to the Court of Appeals of the state of New York. This was denied on March 29, 2011.

Gelber sought to argue the motion for leave to appeal. This was denied on June 9, 2011.

There were no further appeals available.

Route 3:

Gelber brought a motion to vacate the order granting summary judgment. This was heard by the judge who had granted summary judgment and dismissed by him on December 22, 2011.

On December 28, 2011, judgment was entered against Gelber.

Gelber, on January 25, 2012, commenced an appeal from that judgment.

Route 4:

Gelber, on December 20, 2011, filed another motion for summary judgment in the New York action.

This motion was heard on March 21, 2012.

Route 5:

Gelber, on January 6, 2012, filed a motion to vacate the judgment.

This motion was heard on March 21, 2012.

[68] Viewed in this context, it becomes apparent that the position taken on this motion to enforce the judgment of the court in New York is the sixth attempt brought on behalf of Gelber to re-open the matter and contest the finding that Gasiunasen was his authorized agent. There is a point where the courts are being misused by constant and continuing efforts to keep a proceeding open instead of accepting the determination that has been made and moving on. The court is not a hockey rink and its proceedings are not a game. This is not a place to rag the puck. Ultimately, the court has to protect its own process.

[69] It is in this context that I must determine whether to stay the order enforcing the judgment made in New York. I have determined, not without considerable misgivings, to order what I hope will be a short stay. I do this mindful of the advice that, if Gelber has waited to October 25, 2012 to perfect the appeal, it is unlikely to be heard before sometime next year (2013) and Justice Fried’s observation that “it’s inconceivable...that the Ontario Court will not modify the order to release the painting” (see: Hearing Transcript before the Hon. Bernard J Fried, March 21, 2012, at p. 20).

[70] In the end, there is an appeal extant in New York. I cannot know and should not speculate as to the chance of its success. The complications that could arise if the painting was delivered to Van Damme and sold or moved out of the jurisdiction should be avoided. Changing possession but subjecting Van Damme to the conditions of the sort presently in place seems unnecessarily complicated. The order of this court, made on August 7, 2009, has worked to preserve the painting. The order remains in place. I wish to be clear. The stay I order is to be limited to the point in time where the appeal presently underway has been determined. If the appeal was not perfected by the date of the issuance of these reasons (which will be after October 25, 2012), the appeal is to be taken as having been determined. In such circumstances, the stay will not issue and the judgment of the court in New York can be enforced immediately. This will be so regardless of any motion or other attempt to extend the time for perfection of the appeal. If the appeal has not been perfected by the date these reasons are issued, it will be too late.

[71] In the event that the appeal has been perfected by the date these reasons are issued, it is to be taken as being determined on the day the court hearing the appeal issues its reasons or makes known its decision. The stay will be lifted regardless of any appeals of that decision. I say this by repeating the proposition that “... Anglo-Canadian case law consistently holds that the pendency of an appeal does not alter the finality of the judgment pronounced” (see: para. 27 of these reasons; and, Four Embarcadero Ctr. Venture v. Mr. Greenjeans Corp., supra, at para. 76). The judgment under appeal is final. However, as I see it, the respect this court owes the court in New York (comity) requires that we recognize a process that is underway, and has been underway since January 25, 2012.

Order

[72] Accordingly, I order:

1. The judgment of the New York court entered on December 28, 2011 can be enforced in Ontario.

2. The order allowing for the enforcement of the judgment entered on December 28, 2011 is to be stayed pending a determination of the appeal commenced in respect of that judgment on January 25, 2012.

The determination of the appeal is to be as described in these reasons.

3. The order of this court, made on August 7, 2007, is to remain in place pending the enforcement of the judgment entered on December 28, 2011, or further order of this court.

This is consistent with paragraph 6 and paragraph 10 of the Order of August 7, 2007. It follows that I will not make any order with respect to the costs of the hearing of the motion which preceded the order or the costs thrown away at the appointment before the taxing officer. The costs of the hearing and the appointment are to be considered by the taxing officer pursuant to the order.

Costs

[73] Insofar as the costs of this motion are concerned, if the parties are unable to agree, I will consider submissions in writing on the following terms:

1. On behalf of Van Damme, not later than fifteen days after the release of these reasons. Such submissions are to be no longer than four pages, double-spaced, not including any Bill of Costs, costs Outline or case law that may be referred to.

2. On behalf of Gelber, not later than ten days thereafter. Such submissions are to be no longer than four pages, double-spaced, not including any Bill of Costs, costs Outline or case law that may be referred to.

3. On behalf of Van Damme, in reply, not later than five days thereafter. Such submissions are to be no longer than one page, double-spaced.

LEDERER J.

Released: 20121109

COURT FILE NO.: 07-CV-335287PD1

DATE: 20121109

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALEXANDRE VAN DAMME

Applicant

– and –

NAHUM GELBER and GASIUNASEN GALLERY OF PALM BEACH, INC.

Respondents

JUDGMENT

LEDERER J.

Released: 20121109