Smythe v. Lymburner, 2015 ONSC 2719
COURT FILE NO.: CV-10-413357
DATE: 20150601
SUPERIOR COURT OF JUSTICE- ONTARIO
RE: RENNIE SMYTHE, Plaintiff
-and-
JEFFREY LYMBURNER, Defendant
BEFORE: Carole J Brown J.
COUNSEL: Rennie Smythe, representing herself
No one appearing for the defendant
HEARD: April 23, 2015
ENDORSEMENT
The Motion
[1] The plaintiff, Rennie Smythe, brings this motion for summary judgment, seeking an Order recognizing and enforcing the judgment of the Sixth Judicial Court in and for Pinellas County, Florida dated December 24, 2008 as against the defendant, Jeffrey Lymburner. The judgment of the Sixth Judicial Court in and for Pinellas County, Florida was awarded to the plaintiff as an equalization payment in the context of the divorce, payable by the defendant in the amount of $102,144USD, plus interest on that amount at the rate of 11% per annum from July 1, 2004. The plaintiff seeks payment of an amount in Canadian currency sufficient to purchase US$102,144, pursuant to section 121(1) of the Courts of Justice Act, R.S.O. 1990,
c. C.43, as liquidated damages for the said debt which is due and owing, plus interest thereon from July 1, 2004 pursuant to the judgment.
[2] Pursuant to the Order of Stinson J., dated September 30, 2014, this matter was scheduled to proceed to summary judgment on April 23, 2015. To that end, a timeline was propounded. The defendant has not delivered a responding motion record.
[3] However, the defendant did send correspondence, in the form of a response, dated January 13, 2015 and received by the Court on January 28, 2015. In that correspondence, the defendant states that the Ontario Superior Court of Justice, by reason of geography and inadequate jurisdictional authority, should not be involved in the enforcement of the Florida judgment, that both parties have resided as legal permanent residents in the United States for over 18 years, and that the judgment, arising from the divorce, took place in Florida. He further states that he intends to dispute certain elements of the plaintiff’s motion in the
appropriate jurisdiction in Pinellas County, Florida. In addition, he states that he has ongoing business activities in Florida, is under financial duress and that the cost and time required to travel to Toronto from Florida for this proceeding make it prohibitively expensive in terms of time and money.
[4] The defendant has, to date, failed to comply with the Order of the Sixth Judicial Court in and for Pinellas County, Florida to pay to the plaintiff the amount of $102,144USD. His property in Florida is subject to the Florida Homestead Act and not exigible. The evidence indicates that the defendant currently holds property in Ontario.
[5] The parties are ordinarily resident in the State of Florida. Both are Canadian citizens. [6] The plaintiff obtained judgment against the defendant on December 24, 2008 in the
Sixth Judicial Court in and for Pinellas County, Florida, which had jurisdiction to grant
judgment. The defendant was represented by counsel and fully participated in the proceeding leading up to the judgment. Both parties were represented by counsel.
The Issues
[7] The issues before the Court in this motion are as follows:
Whether this Court should recognize the Florida judgment;
For a determination of this issue, the following will have to be determined:
(i) Whether the plaintiff has met the test for recognition and enforcement of a foreign judgment;
(ii) If so, whether the defendant is able to establish any defences to the recognition and enforcement of the foreign judgment;
The Law
Rule 20 and Summary Judgment
[8] Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides for summary judgment where there is no genuine issue requiring a trial with respect to a claim or defence.
[9] The Supreme Court of Canada, in Hyrniak v. Mauldin, 2014, SCC 7 and Bruno Appliances and Furniture Inc. v. Hyrniak, 2014 SCC 8, has recently reinterpreted Rule 20, taking into account the recognized need for access to justice for the majority of Canadians. The Supreme Court held that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. It found that the Court of Appeal, in Combined Air Mechanical Services Inc. et al. v. Flesch et al., 2011 ONCA 764, placed too high a premium on the "full appreciation" of evidence that
can be gained in a conventional trial, given that such a trial is not a realistic alternative for most litigants. It held that a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.
[10] On a motion for summary judgment, the judge must first determine if there is a genuine issue requiring trial based only on the evidence before the judge without using the judge's new fact-finding powers.
[11] There will be no genuine issue requiring a trial if the summary judgment process provides the motion judge with the evidence required to fairly and justly adjudicate the dispute on the merits within the meaning of Rule 20.04(2)(a) and is a proportionate, more expeditious and less expensive means to achieve a just result. Where a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceedings at trial would generally not be proportionate, timely or cost-effective. However, a process that does not give the judge confidence in conclusions to be drawn can never be the proportionate way to resolve the dispute.
[12] Madam Justice Karakatsansis, writing for the Court, observed as follows in the companion case, Bruno Appliances, supra, at paragraph 22:
...[T]he motion judge should ask whether the matter can be resolved in a fair and just manner on a summary judgment motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is the proportionate, more expeditious and less expensive means to achieve a just result. If there appears to be a genuine issue requiring a trial, based only on the record before her, the judge should then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice.
[13] To grant summary judgment, on a review of the record, the motion judge must be of the view that sufficient evidence has been presented on all relevant points to allow him/her to draw the inferences necessary to make dispositive findings under Rule 20.
[14] The Supreme Court recognized that concerns about credibility or clarification of evidence can often be addressed by calling oral evidence on the motion itself, using the powers given to the court pursuant to Rule 20.04(2.1). However, it also recognized that there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.
[15] The enhanced fact-finding powers granted to motion judges in Rule 20.04(1.1) may be employed on a motion for summary judgment unless it is in the "interest of justice" for them to be exercised only at trial. The Supreme Court observed that inquiry into the interest of justice to be served by summary judgment must be assessed in relation to the full trial and the relative efficiencies of proceeding by way of summary judgment as opposed to trial, including the cost and speed of both procedures, the evidence available at trial versus that on the motion, as well as the opportunity to fairly evaluate such evidence.
[16] The Supreme Court further commented that in the interest of justice, inquiry goes further and also considers the consequences of the motion in the context of the litigation as a whole. In cases where some claims against the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice.
[17] The parties must each "put their best foot forward". A party is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial. The court is entitled to assume that all of the evidence the parties intend to rely on at trial is before the court.
Recognition of Foreign Judgments
[18] The test for recognition of a foreign judgment in this Court is as set forth in Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416. As indicated therein, the party seeking to enforce a foreign judgment must establish that the foreign court took jurisdiction according to Canadian conflict of laws rules, i.e. there must be a "real and substantial connection" between the subject matter of the litigation and the foreign jurisdiction. The judgment must be final and conclusive. Further, the patty resisting the foreign judgment bears the burden of establishing any applicable defence, including fraud, public policy and lack of natural justice.
Real and Substantial Connection
[19] As regards a real and substantial connection, the Supreme Court of Canada, in Beals
v. Saldanha, supra, stated as follows at paragraph 32:
The 'real and substantial connection' test requires that a significant connection exist between the cause of action and the foreign court. Furthermore, a defendant can reasonably be brought within the embrace of a foreign jurisdiction's law where he or she has participated in something of significance or was actively involved in that foreign jurisdiction. A fleeting or relatively unimportant connection will not be enough to give a foreign court jurisdiction. The connection to the foreign jurisdiction must be a substantial one.
[20] A foreign court will be regarded as having had jurisdiction if there was a real and substantial connection between the foreign jurisdiction and either (i) the subject matter of the action; or (ii) the defendant. A real and substantial connection with the subject matter of the action will satisfy the test: Monte Cristo Investments LLC v Hydroslotter Corp., 2011 CarswellOnt 10340, appeal dismissed 2012 ONCA 213.
[21] In this case, both parties had lived in Florida for many years, raised their family there and were divorced there. Mr. Lymburner participated fully in the court proceedings in the Sixth Judicial Court in and for Pinellas County, Florida, represented by counsel. There is a real and substantial connection between the subject matter of the litigation and the foreign jurisdiction. The time for an appeal of the judgment has expired, and no appeal is pending. Thus, the judgment is final and conclusive and the Florida courts have no further power to vary or recall it.
[22] Once the plaintiff has established that the foreign court properly took jurisdiction over the plaintiff, that the real and substantial connection test is met, and that the judgment is final, the onus shifts to the defendant to establish any of the limited defences available. Those defences include fraud, public policy and lack of natural justice.
Defences Raised by the Defendant
[23] The defendant has not raised any of the limited defences available.
Fraud
[24] The Supreme Court of Canada, in Beals v Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at paragraphs 43 to 45, explained the defence of fraud as follows:
¶43 As a general but qualified statement, neither foreign nor domestic judgments will be enforced if obtained by fraud.
¶44 Inherent to the defence of fraud is the concern that defendants may try to use this defence as a means of relitigating an action previously decided and so thwart the finality sought in litigation. The desire to avoid the relitigation of issues previously tried and decided has led the courts to treat the defence of fraud narrowly. It limits the type of evidence of fraud which can be pleaded in response to a judgment. If this court were to widen the scope of the fraud defence, domestic courts would be increasingly drawn into a re-examination of the merits of foreign judgments. That result would obviously be contrary to the quest for finality.
¶45 Courts have drawn a distinction between 'intrinsic fraud' and 'extrinsic fraud' in an attempt to clarify the types of fraud that can vitiate the judgment of a foreign court. Extrinsic fraud
is identified as fraud going to the jurisdiction of the issuing
court or the kind of fraud that misleads the court, foreign or domestic, into believing that it has jurisdiction over the cause of action. Evidence of this kind of fraud, if accepted, will justify setting aside the judgment. On the other hand, intrinsic fraud is fraud which goes to the merits of the case and to the existence of a cause of action. The extent to which evidence of intrinsic fraud can act as a defence to the recognition of a judgment has not been as clear as that of extrinsic fraud.
[25] The Supreme Court proceeded to clarify the distinction between intrinsic and extrinsic fraud and held, at paragraph 51, as follows:
The historic description of and the distinction between intrinsic and extrinsic fraud are of no apparent value and, because of their ability to both complicate and confuse, should be discontinued. It is simpler to say that fraud going to the jurisdiction can always be raised before a domestic court to challenge the judgment. On the other hand, the merits of a foreign judgment can be challenged for fraud only where the allegations are new and not the subject of prior adjudication. Where material facts not previously discoverable arise that potentially challenge the evidence that was before the foreign court, the domestic court can decline recognition of the judgment.
[26] A foreign judgment can be challenged for fraud only where the allegations are (i) new and material, (ii) not the subject of prior adjudication by the foreign court, and (iii) could not have been discovered by the defendant by the exercise of reasonable diligence: Monte Cristo Investments LLC v Hydroslotter Corp., supra.
[27] In this case, no fraud has been raised by the defendant.
Denial of Natural Justice
[28] To establish a denial of natural justice, the defendant must establish that he was not granted a fair process complying with the Ontario minimum standards of fairness.
[29] In Beals, in describing the nature of the natural justice defence, the Supreme Court held as follows at paragraphs 60 to 64:
¶60...The domestic court must be satisfied that minimum standards of fairness have been applied to the Ontario Defendants by the foreign court.
¶61 The enforcing court must ensure that the defendant was granted a fair process. ... [I]t is not the duty of the [party seeking enforcement] 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 [party resisting enforcement].
¶62 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. … In the case of judgments made by courts outside Canada, the review may be more difficult but is mandatory and the enforcing court must be satisfied that fair process was used in awarding the judgment. This assessment is easier when the foreign legal system is either similar to or familiar to Canadian courts.
¶63 In the present case, the Florida judgment is from a legal system similar, but not identical, to our own. If the foreign state's principles of justice, court procedures and judicial protections are not similar to ours, the domestic enforcing court will need to ensure that the minimum Canadian standards of fairness were applied. …
¶64 The defence of natural justice is restricted to the form of the foreign procedure, to due process, and does not relate to the merits of the case. The defence is limited to the procedure by which the foreign court arrived at its judgment.
[30] The Beals case clearly states that the natural justice defence is restricted to the form of the foreign process, to due process and does not relate to the merits of the case. The defence is limited to the procedure by which the foreign court arrived at its judgment. In that case, the Supreme Court found that the Florida judgment was from a legal system similar to our own.
[31] In this case, no denial of natural justice has been raised by the defendant.
Public Policy
[32] In order to establish public policy, the defendant must establish that the foreign judgment is founded on repugnant law contrary to the fundamental morality of the Canadian legal system: State Bank of India v. Navarratna, 2006 CarswellOnt 1743.
[33] In this case, there is no evidence of the decision being contrary to public policy, nor is this alleged by the defendant or raised by him in his responding materials.
[34] Based on the foregoing, none of the limited defences to recognition of the foreign judgment have been raised.
Conclusion
[35] I find that the judgment of the Sixth Judicial Court in and for Pinellas County, Florida should be recognized and enforced.
[36] As regards the test for recognizing and enforcing the foreign judgment, I am satisfied that the plaintiff has established the necessary elements as set forth in Beals v. Saldanha, supra. The decision was not appealed, and is therefore final.
[37] Regarding the real and substantial test, there was a real and substantial connection as regards the subject matter of the litigation. Further, Mr. Lymburner defended the Florida action as against him, and participated in the proceedings, with counsel.
[38] None of the limited defences were raised by the defendant in his statement of defense or his written submissions.
[39] Based on the foregoing, I am satisfied that there is no genuine issue requiring a trial, and that summary judgment should issue.
[40] I find that the decision of the Sixth Judicial Court in and for Pinellas County, Florida dated December 24, 2008 should be recognized and enforced in Ontario and so order.
C.J. Brown J.
Date: June 1, 2015