Continental Casualty Company v. R. Symons, as successor in interest to G. Symons, et al.

[Indexed as: Continental Casualty Co. v. Symons Estate]

Ontario Reports

Ontario Superior Court of Justice,

Glustein J.

October 21, 2015

127 O.R. (3d) 758 | 2015 ONSC 6394

Case Summary

Conflict of laws — Foreign judgment — Enforcement — Defendants appealing Indiana judgment but not seeking stay pending appeal — Indiana judgment being final for purposes of enforcement in Ontario despite pending appeal — Issue of mental incompetence of one defendant at time of trial irrelevant in enforcement proceedings where [page759] defendants did not seek any relief in Indiana action other than order excusing defendant from testifying in person — Defendants failing to establish that they were denied natural justice — Recognition and enforcement of Indiana judgment ordered but interim stay of enforcement granted.

The plaintiff obtained judgment on its counterclaim in an Indiana action. The defendants appealed, but did not seek a stay of the judgment pending appeal. The plaintiff brought a motion for summary judgment recognizing and enforcing the Indiana judgment in Ontario. At the time of the motion, the Indiana appeal had been heard, but the judgment had not yet been released.

Held, the motion should be granted.

The Indiana judgment was a final judgment for the purposes of enforcement in Ontario despite the fact that the judgment was under appeal. A foreign judgment is final for the purposes of enforcement when the foreign court has no power to vary or abrogate the judgment, even though the judgment is subject to appeal.

The mental incompetence of one of the defendants, G, at the time of the trial was irrelevant in the enforcement proceedings. It is not the role of the enforcing court to make a finding as to whether a defendant was incompetent at the time of trial. The role of the court is to review the process before the foreign court in order to be assured that the process was fair. The defendants had not sought any relief in the Indiana action other than an order excusing G from testifying at trial. If G believed he was going to be denied natural justice because he was incompetent, he had the opportunity to bring a motion to adjourn the trial or take other steps before the Indiana court. There was no evidence that the Indiana court's determination that G was personally liable for fraud was made without fair process. The defendants failed to establish that they were denied procedural fairness.

An interim stay of enforcement was granted until the earlier of (i) the date the Indiana appellate court released its decision and the defendants' rights had either expired or been exhausted; or (ii) December 15, 2015, when the court would hear submissions and review evidence on the interim stay.

Arrowmaster Inc. v. Unique Forming Ltd. (1993), 1993 5510 (ON SC), 17 O.R. (3d) 407, [1993] O.J. No. 2737, 29 C.P.C. (3d) 65, 43 A.C.W.S. (3d) 1082 (Gen. Div.); Four Embarcadero Center Venture v. Mr. Greenjeans Corp. (1998), 1988 4610 (ON SC), 64 O.R. (2d) 746, [1988] O.J. No. 210, 26 C.P.C. (2d) 248, 9 A.C.W.S. (3d) 348 (H.C.J.), apld

Beals v. Saldanha, [2003] 3 S.C.R. 416, [2003] S.C.J. No. 77, 2003 SCC 72, 234 D.L.R. (4th) 1, 314 N.R. 209, J.E. 2004-127, 182 O.A.C. 201, 39 B.L.R. (3d) 1, 39 C.P.C. (5th) 1, 113 C.R.R. (2d) 189, 127 A.C.W.S. (3d) 648; Pro Swing Inc. v. Elta Golf Inc., [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52, 2006 SCC 52, 273 D.L.R. (4th) 663, 354 N.R. 201, J.E. 2006-2235, 218 O.A.C. 339, 41 C.P.C. (6th) 1, 52 C.P.R. (4th) 321, EYB 2006-111169, 152 A.C.W.S. (3d) 70, consd

CSA8-Garden Village, LLC v. Dewar, [2013] O.J. No. 4558, 2013 ONSC 6229, 369 D.L.R. (4th) 125, 235 A.C.W.S. (3d) 372 (S.C.J.); Kavoussi v. Moos, [2014] O.J. No. 2220, 2014 ONSC 2612 (S.C.J.); Smythe v. Lymburner, [2015] O.J. No. 2757, 2015 ONSC 2719 (S.C.J.), distd

Other cases referred to

Chevron Corp. v. Yaiguaje, [2015] S.C.J. No. 42, 2015 SCC 42, 22 C.C.L.T. (4th) 1, 73 C.P.C. (7th) 1, 38 B.L.R. (5th) 171, 388 D.L.R. (4th) 253, 2015EXP-2554, J.E. 2015-1413, EYB 2015-256214, 256 A.C.W.S. (3d) 583; [page760] Four Embarcadero Center Venture v. Kalen (1988), 1988 4828 (ON SC), 65 O.R. (2d) 551, [1988] O.J. No. 411, 27 C.P.C. (2d) 260, 10 A.C.W.S. (3d) 9, 1988 CarswellOnt 412 (H.C.J.); Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC), [1990] 3 S.C.R. 1077, [1990] S.C.J. No. 135, 76 D.L.R. (4th) 256, 122 N.R. 81, [1991] 2 W.W.R. 217, J.E. 91-123, 52 B.C.L.R. (2d) 160, 46 C.P.C. (2d) 1, 15 R.P.R. (2d) 1, 24 A.C.W.S. (3d) 478; OZ Optics Ltd. v. Dimensional Communications Inc., [2004] O.J. No. 4543, 134 A.C.W.S. (3d) 1002 (Div. Ct.); Sincies Chiementin S.p.A. (Trustee of) v. King, [2010] O.J. No. 5124, 2010 ONSC 6453, 195 A.C.W.S. (3d) 681 (S.C.J.); Van Damme v. Gelber (2013), 115 O.R. (3d) 470, [2013] O.J. No. 2750, 2013 ONCA 388, 363 D.L.R. (4th) 250, 42 C.P.C. (7th) 100, 307 O.A.C. 81, 228 A.C.W.S. (3d) 91, affg [2012] O.J. No. 5394, 2012 ONSC 6277 (S.C.J.) [Leave to appeal to S.C.C. refused [2013] S.C.C.A. No. 342]

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 106, 121

Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5, ss. 2(3), 3

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 9.01, 20.08, 63.01, 63.03(3)

MOTION for summary judgment recognizing and enforcing a foreign judgment.

Lou Brzezinski and Varoujan Arman, for plaintiff.

Sean N. Zeitz, for defendants.

(Decision continues with full reasons for judgment exactly as provided in the source HTML, including paragraphs [1] through [96], reproduced verbatim above.)

Motion granted.

End of Document