COURT FILE NO.: CV-20-00645842

DATE: 20210920

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M1 FLORIDA DEVELOPMENTS INC. and WILLIAM MARDIMAE Plaintiffs

AND

AMERISTAR DEVELOPMENT CORPORATION and GARY MEDWID Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: S. Schwatrz and D. Marr, for the Plaintiffs

HEARD: September 19, 2021, in writing

ENDORSEMENT

Overview

[1] The Plaintiffs bring this motion seeking judgment for the registration and enforcement in Ontario of a final judgment granted by the United States Twentieth Judicial Circuit in and for Lee County, Florida, dated June 25, 2020; Case No. 16-CA-3161 (the US Judgment). The Plaintiffs also seek an order pursuant to s. 121 of the Courts of Justice Act, R.S.O. 1990, c. C.43, requiring the Defendants to make payment to satisfy the US Judgment.

[2] In September 2016, the Plaintiffs commenced an action against the Defendants in the County Court for the Florida Twentieth Judicial District. The action arose out of an investment in, and development of, a property in Lee County, Florida. On March 2, 2019, the parties entered into a settlement agreement to settle the action (Settlement Agreement). Pursuant to the Settlement Agreement, the Defendants agreed to pay to the Plaintiffs the sum of USD $385,000. Payment was to be in four installments:

i) USD $15,000 within 10 days from the execution of the Settlement Agreement;

ii) USD $120,000 within 12 months from the execution of the Settlement Agreement;

iii) USD $120,000 within 24 months form the execution of the Settlement Agreement; and

iv) USD $130,000 within 36 months from the execution of the Settlement Agreement.

[3] As security for the Defendants making the payments, the Defendants consented to the Plaintiffs obtaining Judgment from the US Court against the Defendant, Medwid for the balance of the unpaid amounts. The Defendants also agreed that in the event a final judgment is entered in the US, the Plaintiffs may have the US Judgment registered and enforced in Ontario or any other appropriate province in Canada.

[4] The Defendants made the first installment of $15,000. The Defendants defaulted on the Settlement Agreement when they failed to make the second installment on March 2, 2020. The balance owing was USD $370,000.

[5] On June 25, 2020, the US Judgment was granted to the Plaintiffs. The Defendants were ordered to pay to the Plaintiffs the amount of USD $370,000, plus interest at 6.33% per annum until the Judgment is satisfied, plus costs in the amount of USD $2,178. The US Judgment has not been satisfied.

[6] On August 18, 2020, the Plaintiffs issued the Statement of Claim in Ontario seeking an order for the recognition and enforcement of the US Judgment. The Plaintiffs obtained an order from Master Josefo dated October 14, 2020 allowing for substituted service of the claim on the Defendants by mail and e-mail. On December 18, 2020, the Plaintiffs served the Defendants in accordance with the terms of Master Josefo’s order. The Defendants have not responded to the Claim.

[7] On April 12, 2021, the Plaintiffs submitted a requisition to the Registrar for default judgment against the Defendants. The Registrar rejected the request and directed the Plaintiffs to bring a motion to a Judge.

Analysis

[8] Canadian Courts “have adopted a generous and liberal approach to the recognition and enforcement of foreign judgments”. The purpose of an action is to recognize a foreign judgment is not to evaluate or re-litigate the underlying claim, but instead is to assist in enforcing an already-adjudicated dispute: Chevron Corp. v. Yaiguaje, 2015 SCC 42, at para. 27. A Canadian court will generally recognize and enforce a foreign judgment where the foreign court assumed jurisdiction on the same basis as the domestic court would: Beals v. Saldanha, 2003 SCC 72, at para. 29.

[9] I am satisfied that the US court properly assumed jurisdiction over the dispute. The corporate parties are Florida residents and the investment property in issue in the action is located in Lee County, Florida. The US Judgment is a final judgment and there has been no appeal. Pursuant to the Settlement Agreement, the Defendants consented to the judgment if there was a default. I am of the view that the US Judgment is not contrary to natural justice or public policy.

[10] In addition, the Defendants failed to defend the Statement of Claim and are thereby deemed to admit the allegations of fact. The facts alleged in the Claim support a finding that the Plaintiffs are entitled to Judgment.

[11] The Plaintiffs seek costs of the motion in the amount of $1,786.53 inclusive of counsel fee, disbursements and HST. I am of the view that the amount sought is fair and reasonable in all of the circumstances.

Disposition

[12] I am satisfied that the Plaintiffs are entitled to Judgment for the registration and enforcement in Ontario of the US Judgment.

[13] Order to go in accordance with the draft Judgment filed and signed by me.

DATE: September 20, 2021