Court File and Parties
COURT FILE NO.: CV-17-4281 DATE: 2019-06-03 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SHASHI AIRI Plaintiff/Moving Party – and – GURDEEP “SUNNY” NAGRA Defendant/Responding Party
COUNSEL: James S.G. MacDonald, for the Plaintiff Murray N. Maltz, for the Defendant
HEARD: April 17, 2019
SUMMARY JUDGMENT MOTION
McSweeney J.
1This is a summary judgment motion brought by the plaintiff, Mr. Shashi Airi (“Airi”) to enforce a trial judgment from Vermont against the defendant, Mr. Gurdeep “Sunny” Nagra (“Nagra”). On June 21, 2016, Judge Michael Harris of the Superior Court of the State of Vermont (Rutland Unit), ruled that Airi was entitled to judgment for payment of services rendered by him to Nagra some eight years earlier. The amount of the trial judgment was $57,787.64 USD.
2Airi asks this court to recognize and enforce that foreign judgment. He seeks to do so because Nagra may have assets in this province to enforce against.
3Nagra asks the court to dismiss the summary judgment motion and direct a hearing of the action on the merits in Ontario. He argues that the Vermont judgment should not be enforced as it was obtained against him by fraud, denial of natural justice, and for reasons of public policy. This motion for summary judgment was heard as a long motion before me on April 17, 2019, in Brampton.
Background of the Dispute
4The original dispute between the parties centres on the terms on which Airi performed work requested by Nagra for a total of 15 weeks in 2007 and 2008.
5The record establishes that the defendant had an interest in a company known as Nanak Hotel Group (“Nanak”). Nanak was the owner of two hotels in Brattleboro, Vermont: a Hampton Inn and a Quality Inn. Nanak hired Airi in or around December 2006 as General Manager of those hotels, as well as a third property in a neighbouring state.
6On October 23, 2007, US Federal Agents raided businesses in which the defendant had interests, including the two Vermont hotels where the plaintiff was working. The defendant was criminally charged with fraud and with harboring illegal aliens.
7After these criminal charges were laid against the defendant, Nanak went into receivership. The plaintiff continued for a short time as General Manager of the Hampton Inn and Quality Inn hotel properties. He was paid by Nanak until November 3, 2007, and was then laid off.
8On November 5, 2007, the plaintiff and the defendant met in Vermont. The defendant asked the plaintiff to help him buy back the two hotels in Brattleboro from the receiver. The plaintiff agreed to do so. He worked for five weeks from November 5 to December 14, 2007, as requested.
9On or around June 13, 2008, the defendant again approached him for help, this time relating to selling the Red Roof Inn in Killington, Vermont, and with managing the construction of another Hampton Inn property in Keene, New Hampshire. The defendant told the plaintiff that he would pay the plaintiff once he himself received money from the project. The plaintiff did this work from June 13 to September 1, 2008. He requested payment from the defendant. The defendant did not pay him.
10On the motion before me the defendant did not dispute that the plaintiff performed work from November 5 to December 14, 2007, and also from June 13 to September 1, 2008 (a total of 15 weeks). Rather, he argues that the arrangement was that Nanak, not the defendant personally would pay the plaintiff. The defendant disputes that he at any time promised to pay the plaintiff directly and that all work the plaintiff did was on behalf of the corporation.
The Vermont Action
Pretrial Motions
11Airi issued a claim against Nagra in the Vermont Superior Court, Rutland Unit on or about May 21, 2011. Airi originally based his claim on allegations of fraud. After several amendments, he sought damages for breach of contract, negligent/intentional misrepresentation, and unjust enrichment.
12Nagra retained counsel and moved to dismiss for a lack of sufficiency of factual basis, specifically of the cause of action in fraud. Airi amended his claim to remove the fraud allegations. Instead he pleaded false material representations made by the defendant. The plaintiff’s amended claim is dated January 26, 2012.
13Over the next four years Nagra participated actively in the action. The record reveals that between the filing of the amended claim and the date of trial, Nagra brought several motions against Airi. Most relevant to this motion are the following:
a. On or around December 15, 2014, Nagra, represented by counsel, moved to join Peel Region or in the alternative, for dismissal of the action. His motion was dismissed by the Trial Court. b. On or around December 15, 2014, counsel for defendant brought a motion to dismiss the action on the grounds that as a result of a deportation order against Nagra, he was barred from entering the United States of America. The plaintiff opposed the motion and argued that the defendant was barred from the United States of America as a result of his own criminal actions. The plaintiff also argued that Vermont was the most convenient forum to hear the matter. The Trial Court found that the plaintiff should not be deprived of his choice of forum because of the defendant’s immigration status. The Trial Court also found that the defendant’s absence from Vermont was equivalent to a “voluntary choice.” The Trial Court observed that the defendant had failed to pursue various procedures which might have enabled him to attend trial in Vermont personally, like seeking a temporary admission from the Attorney General under the Immigration and Nationality Act. The Court further found that, even without personal attendance at trial, Nagra could participate in his defence through counsel and appear himself using video conference options. c. Nagra’s counsel then brought a summary judgment motion. On May 20, 2015, the Trial Court dismissed the motion, and found that there was a genuine issue as to whether the defendant hired the plaintiff or whether the plaintiff was hired by or working for the corporate entities. d. On January 12, 2016, Nagra, by then self-represented, brought a motion to testify at the trial via telephone. The Trial Court refused that request but ruled that the defendant could file a motion to participate at the trial by Skype or other electronic means. e. On or around February 2, 2016, Nagra brought another motion to dismiss the action on the grounds that he was barred from entering the United States of America. This motion was also denied on March 31, 2010. In dismissing the motion, the court repeated that Nagra could to move to participate at the trial by electronic means, and that it was his responsibility to make that request and to identify the video conference process he proposed to use. The motion Judge noted that “the court remains open to such a procedure as long as it can be done in a manner that is reasonably equivalent to open court participation and does not compromise the interests of the opposing party or procedural protections the court is obliged to provide.” The motion Judge also noted that it was open to Nagra to be represented by a lawyer at trial. f. On June 15, 2016, five days before the trial was to start, Nagra brought a motion to adjourn the trial. The Court heard this motion on June 20, 2016. Nagra’s motion was denied. The Trial Court noted that the defendant had not taken any steps to request attendance at the trial by video conference.
Trial before Judge Harris
14The trial proceeded on June 21, 2016, before Judge Michael Harris in the Vermont Superior Court. Neither party was represented by this time. Nagra did not appear, nor did he request to participate by video conference.
15The trial lasted one day. The plaintiff represented himself and testified on his own behalf. He also called two witnesses, Dr. Malhotra and Dr. Singh, both prior business associates of the defendant.
16At the conclusion of trial, Judge Harris gave an oral decision. He found that Airi had performed the work claimed and that Nagra had made an oral contract with Airi for the services Airi performed. He allowed Airi’s claim for wages on the basis of that verbal contract. He also found that Airi was entitled to payment on the basis of unjust enrichment. He dismissed Airi’s claim for negligent and or intentional misrepresentation as the evidence was insufficient for him to conclude that Nagra had no intention of paying the plaintiff at the time their agreement was made.
17In total, Judge Harris awarded the plaintiff $28,108.00 USD for damages, $29,417.74 USD for pre-judgment interest and $262.50 USD for the filing fee. As such, the total judgment against the defendant was for $57,787.62 USD. The Court also ordered that post-judgment interest was to accrue at a rate of 12% per year on the principal amount of $28,108.00 USD.
Nagra’s Appeals of Vermont Decision
18Nagra appealed this decision to the Vermont Supreme Court. His appeal was heard by five judges. On appeal, Nagra argued that the trial transcript was not necessary for the appellate court to review the trial proceedings. He did not file a trial transcript. The Court disagreed and found that, under Vermont Rules of Appellate Procedure, the defendant had waived his right to raise issues on appeal that would require a transcript. The Court therefore deemed the Trial Court’s findings to be supported by the evidence at trial. Nagra’s appeal was dismissed on May 12, 2017.
19After his appeal was denied, Nagra brought a motion to reargue the appeal in the Vermont Supreme Court. The motion was heard in June 2017 term. That Court found that the defendant’s failure to submit a transcript could not be remedied by submitting a transcript following the decision. Nagra’s motion to reargue was denied on June 20, 2017.
Issues on this Motion
20The issues before this court on this motion are as follows:
- Whether this motion is appropriately dealt with by way of summary judgment;
- If it is, should this court recognize and enforce the judgment of the Vermont Superior Court? To determine this issue, a two-part analysis with a shifting onus applies: (i) First, the plaintiff must establish that the foreign judgment is final and that the foreign jurisdiction had a “real and substantial connection” to the litigation; and (ii) If the plaintiff meets that onus, the judgment will be recognized and enforced unless the defendant establishes any of the available defences on a balance of probabilities.
Issue 1: Is Summary Judgment Appropriate?
21Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: "the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence." The Supreme Court in Hryniak v. Mauldin, 2014 SCC 7 held at para. 49:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. 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 a proportionate, more expeditious and less expensive means to achieve a just result.
22A responding party may not rest solely on the allegations or denials in the party’s pleadings, but “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”: Rule 20.0(2) of the Rules of Civil Procedure. Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried. A court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 at paras. 26-27, affirmed 2014 ONCA 878, leave to appeal to the SCC denied, July 9, 2015, No. 36341.
23The court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers set out in Rule 20.04(2.1) and (2.2) of the Rules of Civil Procedure. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute, and if summary judgment would be a timely, affordable and proportionate procedure.
24On this motion the parties filed extensive materials. In addition to a factum and authorities, each party filed a motion record and a further supplementary motion record, as well as transcript of cross-examination of each party on the affidavits filed on the summary judgment. Also included in the materials were the various pre-trial decisions in the Vermont action as a transcript of the trial before Judge Harris, and the court’s oral decision.
25Defendant’s counsel argued before me that a trial was necessary in order for me to find the facts necessary in order for me to apply the law of enforcement of foreign judgments.
26I have considered the parties’ submissions on this point. The paper record before me was extensive as described above. On this record I am able to make the necessary findings of fact and to apply the relevant law to reach a decision as to whether or not the Vermont judgment should be recognized and enforced in Ontario.
27I therefore conclude that there is no genuine issue requiring a trial. This matter may appropriately be dealt with by way of summary judgment. I note further that where, as here, summary judgment is available, it is a significantly faster and less expensive means to achieve a result than a more protracted proceeding. The interests of timely justice and proportionate procedure also strongly favour the use of summary judgment in this case, in order to bring finality to the issue of enforcement of a services contract performed over ten years ago.
Issue 2: Should this Court Recognize and Enforce the Vermont Judgment?
28The test for recognition of a foreign judgment in found in the Supreme Court of Canada decision Beals v. Saldana, 2003 SCC 72, [2003] 3 S. C. R. 416. The party seeking to enforce a foreign judgment must establish that the foreign court which took jurisdiction did so where there was a "real and substantial connection" between the subject matter of the litigation and that foreign jurisdiction. The judgment must be final and conclusive.
Where a “real and substantial connection” is established, the onus shifts to the party resisting enforcement to establishing any applicable defences, such as fraud, public policy or lack of natural justice: Beals at paras. 39-77; see also Bank of Mongolia v Taskin, 2011 ONSC 6083 at paras. 37-53, appeal dismissed 2012 ONCA 220.
Real and Substantial Connection
29At para. 32 of Beals, the Supreme Court of Canada described the standard to be met for connection between the litigation and the foreign jurisdiction:
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.
30The Court of Appeal for Ontario has held that the relevant “real and substantial connection” may be 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 be sufficient to satisfy the test: Beals at para. 23; Monte Cristo Investments LLC v Hydroslotter Corp., 2011 ONSC 6011 at para. 18, appeal dismissed 2012 ONCA 213.
31In this case the record establishes that the oral contract between the parties was made in Vermont. At that time both parties were living in Vermont. The services performed by the plaintiff were performed in Vermont and related to hotel properties in that state. Based on these factors, I find that the requisite real and substantial connection existed between the subject matter of the litigation and the state of Vermont.
32The defendant argues that Ontario would have been a preferable jurisdiction for the plaintiff’s action to be brought because the defendant resides and has his assets in Ontario. However, the applicable test is not whether an alternative jurisdiction could also possibly have a real and substantial connection, or even a greater connection, to the litigation than the one chosen by the plaintiff. The question is whether the facts establish a sufficient connection to the forum which was chosen by the plaintiff.
33I also note that the record indicates that Nagra participated for several years in the action in Vermont prior to trial. He was represented by counsel for much of that time, and actively participated in the litigation as referenced earlier. At no time during that four year pre-trial period did he challenge Vermont’s jurisdiction or move to stay the proceedings in favour of a different forum. Nor was lack of jurisdiction a ground of his appeal to the Vermont appeal court, nor of his motion to have the appeal re-heard.
34In sum on this point, the defendant’s own actions indicate his acquiescence to the connection between Vermont and the action brought against him. In addition, his own active participation in the Vermont litigation may be viewed as attornment to that jurisdiction.
35The test in Beals requires that the foreign judgment to be enforced be a final decision. There is no dispute in this case that the decision of Justice Harris, upheld by the Vermont Supreme Court, is a final judgment.
Defences Raised by the Defendant
36I have found that the moving party has met his onus under the first part of the Beals analysis. The defendant Nagra bears the onus on the second part of the analysis. Nagra argues that the all three of the limited defences set out in Beals apply in this case, and that the court is therefore precluded from enforcing the Vermont judgment. These defences are fraud, denial of natural justice and contravention of public policy. I will address each in turn.
(a) The Defence of Fraud
37The Supreme Court of Canada has described the importance of treating the defence of fraud narrowly in the context of foreign judgments in Beals at paras. 43-44, 51:
As a general but qualified statement, neither foreign nor domestic judgments will be enforced if obtained by fraud.
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.
[T]he 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.
38Thus, the onus on the defendant Nagra is to lead evidence of allegations which are (i) new and material, (ii) not the subject of prior adjudication by the foreign court, and (iii) which he or she could not have discovered earlier by the exercise of reasonable diligence: Beals, at para. 50.
39Nagra argues essentially that the plaintiff Airi committed fraud by lying to the court in his testimony at trial. Specifically, Nagra argues that Airi testified that he worked exclusively for Nagra, not for anyone else, during the two periods of time for which he seeks wages from Nagra. In doing so, he committed fraud on the Vermont court and thus the decision of that court should not be enforced.
40In support of this argument, Nagra pointed to documentary evidence of payments including expense claim payments, made to Airi by corporate entities he worked for, which were dated during the weeks he worked directly for Nagra pursuant to the verbal contract. Counsel also directed the court to statements made by Airi in his cross-examination of April 1, 2019, indicating that he worked solely for Nagra during the time periods in issue. He also contends essentially that the issue of whether Airi’s work was performed for Nanak Corporation or for Nagra personally, a key issue, was not dealt with at trial.
41During his submissions, I requested Nagra’s counsel on two occasions to identify the places in the 2016 Vermont trial transcript where the plaintiff made the alleged fraudulent statements, specifically that, as argued by counsel, Airi stated that he worked “for only one person” while working for Nagra. Counsel declined to take me to the trial transcript, stating “I prefer to rely on my cross [of Airi on April 1, 2019]”.
42The following observations are relevant to my analysis of the fraud defence raised by Nagra.
43With respect to the allegation that Airi perjured himself at trial by testifying that he worked for nobody else during the Vermont trial: counsel asks me to find this fact based on Airi’s admission in his cross examination of April 1, 2019, that he took that position at trial. However, the best evidence of what was said at trial is of course the trial transcript itself.
44A review of the trial transcript indicates that the Plaintiff did not in fact testify that he was exclusively working for Nagra during the relevant periods. The defendant’s argument is therefore without factual foundation on this point. The defendant would have me find that Airi agreeing to a different characterization of his testimony at trial three years later is evidence of perjury at the prior trial. I do not agree. I further note that when questioned by defendant’s counsel on this point, his alleged trial testimony was not put to him for review.
45At best the evidence establishes that Airi’s recall in 2019 of what he said at trial in 2016 does not accord exactly with what he did testify at trial. Such a conclusion does not assist the defendant with establishing fraud perpetrated by Airi at trial.
46Further, with respect to the evidence elicited by the defendant from Airi on his affidavit cross-examination, the defendant pointed to some receipts that indicate the plaintiff was receiving money from other sources during the relevant periods. Such receipts do not, however, establish that he was actively working for someone else, as distinct from receiving funds relating to previous periods of work. Even if the receipts did substantiate that Airi performed other work during the period of his work for Nagra, such evidence is not relevant to whether Airi performed work for Nagra at that time. On the motion before me, Nagra’s counsel conceded that Airi did the work he claims to have done.
47Analyzing the evidence above in relation to the requirements to prove fraud as a defence to foreign judgment enforcement, I find as follows:
a. The contention that Airi lied at trial was not established on the facts. The defendant’s implicit corollary argument, namely that I should prefer Airi’s evidence on cross-examination three years after trial about what he said at trial as opposed to the evidence itself, as recorded in the trial transcript, is not logically sound. At best this establishes an imperfect recollection of an immaterial point. I reject the defendant’s argument on that point. b. Further, any new evidence tendered in support of the defence of fraud must be new and also material. To the extent that any evidence tendered by Nagra was new, specifically the recent cross-examination of Airi on his summary judgment affidavit, such evidence was not material to the test to be met by the defendant to resist enforcement of the judgment. c. Finally, to establish fraud, Nagra must also establish that the fraud allegations were not the subject of prior adjudication by the Vermont court. On the issue of whether the work in question was performed by Airi for Nagra personally, or for the Nanak Corporation, the trial transcript indicates that the trial judge specifically turned his mind to that question. On several occasions during the trial, the judge referenced the fact that the plaintiff could only make claims against Nagra personally, and the court did not have jurisdiction to determine liability for any agreements between the plaintiff and the corporation. The trial judge was also careful in his reasons to specify the time periods and transition periods between the plaintiff's work for the corporate entity, and the work which he concluded on the evidence was performed for Nagra personally: see pp. 13, 17, 19, 21, 27-30, 35, 38, 42, 51, 55, 61-62, 87, 88, 91-93, 97, 105, 111, and 117 of the trial transcript.
48In conclusion, on the defence of fraud, the law requires the defendant to prove each of the three elements described above. While a failure to establish even one of the elements would defeat this defence, I find on the evidence that he has not established any of the requisite elements. The defence of fraud therefore fails.
(b) The Defence of Denial of Natural Justice
49The trial in Vermont took place during a time when Nagra was ineligible to enter the United States. Nagra argues before me that his inability to participate in the Vermont action in person, specifically at the trial, was a denial of natural justice and that the resulting judgment should not be enforced in Ontario.
50To establish this defence, the defendant must show that he was not granted a fair process complying with the Ontario minimum standards of fairness. The plaintiff does not have to establish that the legal system from which the judgment originates is a fair one. The onus to establish any of the available defences rests with the defendant: Beals, at para. 61; Monte Cristo, at para. 29.
51In Beals, in describing the nature of the natural justice defence, the Supreme Court held at paras. 62-64:
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. This determination will need to be made for all foreign judgments. Obviously, it is simpler for domestic courts to assess the fairness afforded to a Canadian defendant in another province in Canada. 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.
…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. If fair process was not provided to the defendant, recognition and enforcement of the judgment may be denied.
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.
52Beals clearly recognizes that the natural justice defence is restricted to the form of the foreign process, to due process, and not to the merits of the case. The defence is limited to the foreign court’s procedure, not to conduct an inquiry as to whether the foreign court properly considered the merits of the case. Where the foreign court is similar or familiar to Canadian courts, the analysis of procedural fairness will be easier.
53In this case the action was brought in Vermont. Nagra does not take issue with the fairness of the Vermont court system. He contends that he was denied natural justice because, as stated succinctly by his counsel on the summary judgment motion, he “could not participate at most relevant time, at trial.”
54Certainly it is of concern to the court, as a matter of basic procedural fairness, that a defendant have a fair opportunity to participate in his trial and defend the case against him. In this case, however, a review of the record indicates that the defendant did participate in the action over several years, with the assistance of counsel, and brought several motions as referenced earlier. He was alive to the existence of the trial and its timelines. This is clear from his motions prior to trial, including his final pretrial motion to adjourn the trial.
55With respect to his participation at trial, there is no dispute that Nagra was not able to freely travel to the United States at the time of trial. However, it was open to him to request special permission to attend at the trial from the Attorney General. He did not do so.
56Further, he was advised by the Vermont court motions judges in three separate endorsements that he could request to participate in the trial by video conference. Specifically I note that the Vermont court addressed this specific issue in writing on: December 15, 2014; January 12, 2016; and February 2, 2016.
57I find on the evidence that the defendant was not denied a fair trial by any operation of the court process in Vermont. To the contrary, he was represented by counsel for the first years after the claim was initiated, and acted actively for himself thereafter. He brought motions in which he made the Vermont court aware of his difficulty in attending court in person due to his immigration status. The Vermont court advised him repeatedly of steps he could take to request video conference participation. Nagra chose not to do so.
58Had the defendant availed himself of that process, and been denied video conference participation rights, those would be different facts. Or if he had participated by video conference but felt that he was unable to meet the case against him by virtue of alleged limitations of that form of participation, those would again be different facts.
59On this record, however, I find that the cause of the defendant’s non-participation in the trial arose not from a failure of natural justice or due process, but from his own decision not to seek to participate by the means available to him. I therefore do not find that the defendant has established a defence of enforcement based on a denial of natural justice.
(c) Public Policy Defence
60In order to make out a defence based on 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: Beals, at para. 71.
61The defendant does not point to a repugnant law. Rather, he submits that the evidence of fraud by the plaintiff in the Vermont proceedings is so egregious that it would violate public policy for this court to order enforcement of the Vermont judgment. That is, he argues that the plaintiff’s conduct was so egregious as to shock the conscience of the court.
62I concluded earlier that the defendant has failed to establish the defence of fraud. Nor do any of his allegations, separately or together, persuade this court of the existence of fraudulent conduct by the plaintiff in the Vermont proceedings of any sort, let alone an unconscionable degree of same.
63The defendant has therefore failed to establish a defence to enforcement on the basis of contravention of public policy.
Other Issues Raised by Defendant
64I will briefly reference three other arguments made by the defendant. First is his contention that the Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5 is the statutory framework for the issues to be decided on this motion. As per O. Reg. 322/92, that statute applies solely to judgments issued in one province or territory which a party seeks to enforce in a different Canadian jurisdiction, with the exception of Quebec. While some of the enforcement principles are the same as those set out in Beals, it is the common law analysis that applies in this case. I dismiss those arguments made by the defendant which are premised on the applicability of this statute.
65The defendant also argued that the Vermont judgment should not be enforced because it would have been out of time in Ontario as the claim was started more than two years after the contract was made. The defendant did not offer significant authorities or argument on this point, nor discuss the limitations laws for civil claims made in Vermont. In dismissing this argument, I make the following observations: first, the appropriate time and place for the defendant to raise a limitations defence was in the Vermont action at the time it was commenced, not at the time of enforcement of the resulting foreign judgment. I note further that the services contract as found by the Vermont court accepted Airi’s evidence that Nagra had promised to pay him not at the conclusion of his work, but at an unspecified later date when he anticipated having more funds. Presumably any limitation would flow from the time at which the payment was to have been made. Without evidence of this date, a limitations claim cannot easily be made out.
66Defence counsel also argued the applicability of a related case on which he was successful between Nagra and his former business partner Malhotra: Nagra v. Malhotra, 2012 ONSC 4497. In that case Nagra was successful in a forum conveniens motion. He successfully argued that Ontario was the more convenient forum, because both parties resided in Ontario, and a number of witnesses also lived in Ontario. I do not find that decision relevant to my analysis on this motion. In Malhotra v. Nagra, Nagra brought a motion to change the forum of an ongoing matter. In this case he did not. In fact, he did not dispute Vermont’s jurisdiction in any of his pre-trial motions, nor in his appeals to the Vermont Supreme Court.
Conclusion
67The plaintiff has met its onus under Beals for the enforcement of the Vermont judgment. The defendant has failed to establish any of the applicable defences to that enforcement. Summary judgment is granted in favour of the plaintiff.
68I should note that my review of the evidence as a whole supports a characterization of the defendant’s arguments as an attempt to delay enforcement of the Vermont judgment by drawing this court into a re-litigation of what was, in essence, a small claims action held in Vermont several years ago. As a matter of law and policy, courts are to avoid an outcome that would “thwart the finality sought in litigation”: Beals, at para. 44. In this case, further delay would also further exacerbate the disproportionality between the amount at issue in the litigation and the process required of the plaintiff to enforce his judgment.
69I order as follows:
a. Summary judgment is granted; b. The judgment granted by Judge Michael Harris on June 21, 2016, is hereby recognized and may now be enforced in the Province of Ontario; c. In particular, the defendant Nagra is ordered to pay the plaintiff Airi $57,787.64 USD; d. As the principal amount owing, $28,108.00 USD of this award is subject to 12% interest between June 21, 2016, and the date of this judgment. Following Judge Harris’ calculations in his Order, that interest rate amounts to a simple interest rate of 1% per month. It has been 35 months and 10 days since the Vermont judgment. 35 months x $28,108 x 0.01 = $9,837.80. Judge Harris calculated the daily interest as $9.24, thus $120.12 should be added for the additional 13 days. Thus, the total owing on the date of this judgment is $67,745.56 USD; e. Following s. 121(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, I order that the amount owing shall be converted to Canadian dollars at the Bank of Canada’s closing rate on the date of this judgment, June 3, 2019. The closing exchange rate is 1.347, resulting in a total owing of $91,253.27 (Canadian); and f. From the date of this judgment, the entire amount is subject to 3% per year post-judgment interest pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43;
Costs
70At the conclusion of argument on the motion before me, counsel agreed that the applicable range of costs to be paid to the successful party was $12,000.00 to $15,000.00.
71The plaintiff was successful in obtaining summary judgment. The record establishes that the defendant resisted the plaintiff’s motion actively, and required the plaintiff to spend significant time and resources to enforce his fairly modest quantum judgment.
72In these circumstances an award of costs at the upper end of the range proposed by counsel is appropriate. Costs fixed in the amount of $15,000.00 (Canadian funds), and ordered to be payable by the defendant to the plaintiff within 30 days.
McSweeney J. Released: June 3, 2019