Court File and Parties

COURT FILE NO.: 14-62521 DATE: 2016-05-27 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: YVONNE GUINDON, Plaintiff/Responding Party, AND: A & H ASSET AUCTIONS INC., Debtor/Defendant/Moving Party

BEFORE: Justice Timothy Ray

COUNSEL: James Anderson, Counsel, for the Plaintiff/Responding Party Bryan Delaney, Counsel, for the Debtor/Defendant/Moving Party

HEARD: May 27, 2016

Endorsement

[1] The defendant seeks an order that certain jewellery that was the subject of an action in Quebec that gave rise to a default judgement for money damages be placed in trust in his office for his client on payment by his client to the plaintiff of the amount of the judgement. I am not prepared to make the requested order.

[2] The requested relief in this motion constitutes a collateral attack against the judgement of Lalonde, J of the Quebec Superior Court dated September 15, 2014, and the order of McLean J of this court dated November 17, 2014 in which he recognized and ordered the judgement of Lalonde J in the amount of $59,003.00 be enforceable in Ontario. No appeal was sought from either order, and no motion to vary or reconsider was ever launched either before Lalonde, J or McLean, J. It therefore represents an abuse of process and must be dismissed.

[3] The facts are straight forward. The plaintiff had commenced an action in Quebec for damages arising out of her purchase of jewellery from the defendant. The action was defended by the defendant, examinations were conducted, and eventually a judgement was obtained from Lalonde J, April 24, 2014, on motion by the plaintiff after the defendant had been found in default for failure to comply with certain court procedures after being served with a notice January 27, 2014. The defendant was made aware of the Quebec judgement but took no steps to appeal or otherwise seek to vary or have it set aside. The plaintiff then obtained an order from McLean J, November 17, 2014, recognizing and ordering enforcement of the judgement in Ontario. No appeal or motion to vary or set aside his order was ever launched. All of the foregoing was before Kershman J on February 16, 2016, when he dealt with garnishment proceedings brought by the plaintiff; and the defendant sought to raise settlement discussions between the parties as a defence. His honour declined to adopt the defendant’s argument and ordered garnishment of the lawyers trust account. Again no appeal was taken from Kershman J’s order, and there was no motion to vary or set it aside.

[4] The defendant now brings this motion, abandons his claim for equitable set-off, and seeks an order requiring the plaintiff to give the jewellery to the defendant on payment by the defendant of the full amount of the judgement, interest and costs. He asks that I exercise my discretion to order return of the jewellery on the ground that to do otherwise would amount to double recovery by the plaintiff; and contends that the award of damages represented the value of the jewellery, thereby creating double recovery.

[5] The defendant has given no explanation for his failure to take any steps with respect to the orders of Lalonde J, or McLean J. They must therefore be treated as final and are res judicata. The relief sought by the defendant amounts to a collateral attack on these two judgements which is expressly prohibited. While the Quebec judgement was a default judgement, it cannot be said that the judge had not been aware of the defence or that the action had not been defended. His decision reflects that he considered the merits of the case. I must also bear in mind the proper law of the proceeding was Quebec law. It would be wrong for me to assume that the damages awarded by Lalonde J carried the same meaning as damages in Ontario. In any event by reason of my conclusion, I do not consider it necessary to deal with that argument.

[6] I note that the defendant has still not paid the full amount of the judgement, interest and costs.

[7] The motion is dismissed with costs payable by the defendant fixed at $2,500.00 forthwith. This means that the defendant, moving party, may not bring any further proceedings in this matter until these costs are paid.

Honourable Justice Timothy Ray Date: May 27, 2016