COURT FILE NO.: CV-21-664585
DATE: 2022 05 26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MIDLAND RESOURCES HOLDING LIMITED, Plaintiff
- and -
MICHAEL SHTAIF, Defendant
BEFORE: Associate Justice Todd Robinson
PARTIES: M. Shtaif, acting in person (moving party)
COUNSEL: K. Theeuwen and K. Prehogan, for the plaintiff (responding party)
HEARD: February 25, 2022 (by videoconference)
REASONS FOR DECISION
[1] In early 2014, following a 59-day trial, Sanderson J. granted judgment for US$59,559,512.97 against Michael Shtaif in favour of Midland Resources Holding Limited, a company incorporated in Guernsey (“Midland Guernsey”). That judgment was reduced on appeal to US$8,370,482.02. Leave to appeal to the Supreme Court of Canada was denied. Mr. Shtaif has made no payments toward the judgment debt.
[2] Midland Guernsey was dissolved in November 2019. Midland Resources Holding Limited, a company incorporated in the British Virgin Islands (“Midland BVI”) has been pursuing enforcement of the judgment since August 2019, after Midland Guernsey assigned the judgment to it. Enforcement efforts are ongoing in Alberta, where Mr. Shtaif resides. To support those enforcement efforts, Midland BVI obtained two certificates of judgment from the registrar of this court: one on October 15, 2019 and another on February 5, 2020.
[3] Mr. Shtaif has previously challenged the validity of the assignment and the two certificates of judgment in several forums: as an intervenor in another proceeding before this court, in a subsequent appeal to the Ontario Court of Appeal, and in various appearances before the Alberta courts where the judgment against him was registered by court order. Mr. Shtaif now raises those challenges on this motion before me, primarily seeking to set aside the registrar’s certificates and declare that the assignment of the judgment to Midland BVI was only valid in equity.
[4] The issues to be determined on this motion are as follows:
(a) Whether Midland BVI was required to obtain an order to continue and, if so, whether it should now be precluded from obtaining one for delay;
(b) Whether the assignment of the judgment is enforceable against Michael Shtaif, requiring consideration of the following three sub-issues:
(i) Whether Mr. Shtaif’s current challenge to validity of the assignment of the judgment is a collateral attack on prior judicial decisions;
(ii) If not, whether Midland BVI failed to comply with Rule 5.03 of the Rules of Civil Procedure, RRO 1990, Reg 194 and what impact results from any non-compliance; and
(iii) Whether it is necessary and appropriate to determine if the assignment was only valid in equity prior to formal written notice of assignment being given to Mr. Shtaif in March 2021; and
(c) Whether the two certificates of judgment should be set aside for material non-disclosure by Midland BVI or lack of jurisdiction by the registrar.
[5] Mr. Shtaif initially sought an adjournment of the motion based on late service of Midland BVI’s responding materials. The adjournment request was opposed. For reasons given orally at the hearing, I denied the adjournment. Mr. Shtaif’s motion record was itself late-served and responding materials were served within one business day of being served with the motion record. Also, a significant factor in my decision was Mr. Shtaif’s willingness to proceed if given more time to make submissions (albeit that he preferred to prepare written responses to the responding factum). Mr. Shtaif had already submitted a lengthy factum. I provided Mr. Shtaif with additional time for submissions and the motion proceeded for most of the day.
[6] Mr. Shtaif has advanced a detailed procedural argument that has required some time to consider. However, in my view, substantive justice favours Midland BVI in all the circumstances. I do not agree that an order to continue was required and the issue of enforceability of the assignment has been addressed by the Court of Appeal. I decline to decide whether the assignment was effective only in equity until March 2021, since that determination is not necessary for a fair and proper disposition of this motion. I also find no basis to set aside either of the certificates of judgment, which were issued on a purely administrative basis. I am thereby dismissing Mr. Shtaif’s motion.
Analysis
Preliminary matter – Scope of issues
[7] The issues as I have outlined them above are somewhat different than the specific relief sought in Mr. Shtaif’s notice of motion. In his notice of motion, Mr. Shtaif seeks the following primary relief:
(a) an order declaring the certificates of judgment issued on October 15, 2019 and on February 5, 2020 as null and void for failure to comply with the Rules 11.01 and 11.02 of the Rules of Civil Procedure, to serve Mr. Shtaif with an advanced notice of assignment and transfer, and to serve Mr. Shtaif with an order to continue;
(b) an order “dismissing the action as a result of unreasonable, inordinate and inexcusable delay for failure to obtain and serve [Mr.] Shtaif with an order to continue in accordance with the provisions of Rule 11.03 of the Rules of Civil Procedure”;
(c) an order declaring the assignment and transmission of assets from Midland Guernsey to Midland BVI “not effectual and unenforceable as against Shtaif for failure to comply with the Rule 5.03(3)(b) of the Rules of Civil Procedure”;
(d) “an order seeking advice and direction from this Honorable Court.”
[8] Midland BVI argued essentially that the above relief, as framed by Mr. Shtaif, is the limit of what I should be considering on this motion and the sole issues to be decided. I do not agree for two reasons.
[9] Firstly, I cannot simply turn a blind eye to procedural issues that I identified from the materials and raised with counsel and Mr. Shtaif in the course of submissions. They bear directly on a fair and proper disposition of this motion.
[10] Secondly, while I accept that Mr. Shtaif is not an inexperienced self-represented litigant, he is still self-represented. As would be the case with counsel, it is reasonable to make allowances for inaccuracies in drafting a notice of motion provided there is proper notice of the actual relief being sought. Notably, Mr. Shtaif’s relief includes seeking directions. In addition, Mr. Shtaif’s factum (served prior to motion record and included in it) expands on the relief sought. I am satisfied that Midland BVI had notice of Mr. Shtaif’s position and did not seek an adjournment for further materials. They were evidently not needed to effectively argue the motion.
Issue 1 – Was Midland BVI required to obtain an order to continue and, if so, should it now be precluded from obtaining one?
[11] Mr. Shtaif did not pursue relief seeking dismissal of this action for delay under Rule 11.03 for failure by Midland BVI to obtain an order to continue after assignment of the judgment by Midland Guernsey. During oral submissions, Mr. Shtaif clarified that he was not asking for the action to be dismissed, but rather that Midland BVI be precluded from seeking an order for continue at this point.
[12] I agree with Midland BVI that an order to continue was not required, but was certainly not required to obtain the certificates of judgment. I thereby need not address whether it is fair and appropriate to preclude Midland BVI from now obtaining an order to continue.
[13] Rule 11.01 provides that, upon transfer or transmission of an interest or liability of a party, a proceeding is stayed with respect to that party until an order to continue is obtained. The stay arises “at any stage of a proceeding” where the transfer or transmission occurs. Subrule 11.02(1) provides that an order to continue may be obtained “where a transfer or transmission of the interest or liability of a party takes place while a proceeding is pending”. Rule 11.03 provides that a defendant may move to dismiss an action for delay if an order to continue is not obtained within a reasonable time.
[14] This proceeding was originally on the Commercial List as Court File No. 08-CL-7446. It was tried in 2013 with judgment issued in 2014. Prior to this motion being brought, it was transferred from the Commercial List to the Civil List by order of Conway J. dated October 16, 2020, following which a new court file number was assigned by the court with an amended title of proceedings. I am unclear on why that was done, but it nevertheless remains the same proceeding in which judgment was granted.
[15] While Midland Guernsey and Midland BVI have the same legal name, they are separate legal entities. There is no question that Midland Guernsey’s assignment to Midland BVI is a transfer or transmission of Midland Guernsey’s interest in the judgment. However, there has already been a final disposition of the proceeding. If Rule 11 still applies, what exactly would be stayed pending an order to continue being obtained?
[16] In my view, Rule 11 does not apply here. I agree with Midland BVI that this proceeding is no longer pending. There has already been a final disposition by trial and judgment. There is no pending proceeding left to stay. All of the cases relied upon by Mr. Shtaif deal with motions prior to trial. I have been directed to no statutory or case law authority supporting that Rule 11 operates to stay a proceeding after judgment. Similarly, I have been provided with no case law supporting that a procedural stay (if one arises) impacts enforceability of a judgment obtained in that proceeding, including by a legal or equitable assignee of the judgment or in extra-provincial proceedings.
[17] In any event, as discussed in greater detail below, I have determined that the registrar issuing certificates of judgment is a purely administrative function. Midland BVI did not require an order to continue to requisition and obtain either of the two certificates of judgment.
Issue 2 – Is the assignment of the judgment enforceable against Michael Shtaif?
[18] Mr. Shtaif’s notice of motion formally seeks a declaration that the assignment is ineffectual and unenforceable against him. However, during oral submissions, Mr. Shtaif clarified that he only seeks a declaration that the assignment was only effective in equity and not in law, at least until March 2021 when written notice of assignment was given. He is not seeking to invalidate the assignment.
[19] Three sub-issues must be addressed:
(a) Does Mr. Shtaif’s argument that the assignment is invalid at law amount to a collateral attack on prior judicial decisions?
(b) If not, did Midland BVI fail to comply with Rule 5.03 of the Rules of Civil Procedure and what is the impact of any non-compliance?
(c) Is a determination that the assignment was only valid in equity prior to March 2021 supported, necessary, and appropriate to make?
a. Does Mr. Shtaif’s argument amount to a collateral attack on prior decisions?
[20] Midland BVI argues that Mr. Shtaif’s arguments about validity of the assignment were previously raised in this court before Morgan J. and before the Court of Appeal and were rejected by both. His current challenge to the legal validity of the assignment is thereby argued to be a collateral attack on those prior decisions. I agree.
[21] Before delving into Mr. Shtaif’s arguments, it is important to note that there is no dispute that the Royal Court of Guernsey issued an order on August 12, 2019 that authorized Midland Guernsey’s liquidator to execute agreements to transfer the company’s assets. There is also no dispute that, on August 13, 2019, an “Instrument of Transfer” was executed that included transfer of Midland Guernsey’s rights of enforcement in the trial and appeal judgments to Midland BVI.
[22] Mr. Shtaif’s position was (and remains) that the assignment of the judgment was not legally valid or enforceable by reason of non-compliance with Guernsey law. Mr. Shtaif argues that compliance did not occur until March 2021, when he was given formal written notice of the assignment following Midland Guernsey being revived.
[23] In support of his legal argument, Mr. Shtaif points to an expert opinion (in the form of two affidavits) obtained from a Guernsey lawyer, Gareth Kevin Bell, in separate proceeding. In those affidavits, Mr. Bell opines that no effective legal assignment of the judgment had occurred prior to Midland Guernsey being dissolved in 2019. Rather, Mr. Bell’s opinion is that the assignment could only take legal effect following Midland Guernsey being restored in 2021 and notice of assignment thereafter being served. Mr. Bell further opines that those steps “cannot have had the effect of ‘backdating’ the assignment to 13 August 2019 or any earlier date.”
[24] Validity of the assignment was raised by Mr. Shtaif in motions and an appeal in a separate fraudulent conveyance action commenced by Midland Guernsey against Eugene Bokserman and his spouse, Elena Krasnov. Mr. Bokserman was a co-defendant to Mr. Shtaif in this proceeding under Court File No. 08-CL-7446. In addition to the judgment against Mr. Shtaif, Midland Guernsey obtained judgment against Mr. Bokserman for US$1,500,000.
[25] In the fraudulent conveyance action, which was commenced after judgment was rendered in this proceeding, Midland Guernsey sought to set aside the transfer of Mr. Bokserman’s interest in a property jointly owned with his spouse. Following assignment of the judgment by Midland Guernsey, Midland BVI obtained and served an order to continue in that proceeding. It thereafter moved for summary judgment. Mr. Shtaif moved for and was granted limited intervenor status in that motion.
[26] Prior to the summary judgment motion, Mr. Bokserman and Ms. Krasnov served a motion for leave to introduce fresh evidence on Guernsey law. That evidence included the expert affidavits of Gareth Kevin Bell already discussed. As I understand, their motion was supported by Mr. Shtaif.
[27] Morgan J. refused to admit the evidence. He found no basis on which he could rule that an assignment authorized by the Royal Court of Guernsey in an order that was never appealed or set aside was not legally valid under Guernsey law. He further held that that engaging in such an analysis would amount to a collateral attack on a ruling of the Guernsey court that was “wrongly invasive of a foreign legal system’s sovereign domain”: Midland Resources Holdings Ltd. v. Bokserman, 2021 ONSC 3077 at paras. 40-44.
[28] Morgan J.’s decision was upheld on appeal. The Court of Appeal was not persuaded that Morgan J. erred in principle or misapprehended the evidence, or that his decision to refuse to admit the evidence was unreasonable. The Court of Appeal also expressly noted that any procedural flaws associated with the assignment were corrected, citing the expert affidavit evidence of Gareth Kevin Bell that revival of Midland Guernsey in February 2021 enabled that corporation to give legally valid notice of the assignment. Legal assignment had thereby been perfected and had taken effect as against Mr. Bokserman in February 2021 when notice was served on him: Midland Resources Holding Limited v. Bokserman, 2022 ONCA 73 at paras. 19-26.
[29] Mr. Shtaif submits that Morgan J. was incorrect in his understanding of the order of the Royal Court of Guernsey that had authorized the liquidator to enter transfer agreements. He points to a decision of the Alberta Court of Appeal granting a stay of enforcement in Alberta pending the outcomes of both the appeal from Morgan J.’s decision and this motion. In that decision, Vedhuis J.A. questioned Morgan J.’s reliance on the order of the Royal Court of Guernsey that authorized the assignment agreement. Veldhuis J.A. observed that the order “does not retroactively approve the executed Instrument of Transfer or otherwise dispense with all other legal requirements regarding contracts or assignments in Guernsey”: Midland Resources Holding Limited v. Shtaif, 2021 ABCA 286at para. 25.
[30] I acknowledge those comments. However, since that decision was released, the Ontario Court of Appeal has decided the appeal from Morgan J.’s order. Morgan J.’s decision was upheld. Notably, Morgan J.’s conclusion that Midland BVI had standing to continue the action against Mr. Bokserman and his spouse was found to have been appropriate: Midland Resources Holding Limited v. Bokserman, 2022 ONCA 73 at para. 26. That decision was based, in part, on the Court of Appeal’s view that Morgan J. did not err in his exercise of discretion. The Court of Appeal specifically acknowledged Morgan J.’s determination that an Ontario court could not rule on validity of a transfer under Guernsey law and further held that, in any event (and as I have already noted), any issues with the assignment to Midland BVI had been addressed when Midland Guernsey was revived and gave notice of the assignment.
[31] Mr. Shtaif was an intervenor and directly involved in both the motion before Morgan J. and the subsequent appeal. Morgan J.’s decision was affirmed. The arguments raised by Mr. Shtaif before me were raised in the Court of Appeal and rejected. Midland BVI relies on the same assignment addressed by Morgan J. and the Court of Appeal to pursue Mr. Shtaif in Alberta. In my view, in these circumstances, advancing the same arguments again before me amounts to a collateral attack on those prior decisions.
b. Did Midland BVI fail to comply with Rule 5.03 and, if so, what is the impact?
[32] Even if I am wrong that advancing the same arguments before me amounts to a collateral attack on the prior decisions of Morgan J. and the Court of Appeal, I would give no effect to Mr. Shtaif’s technical argument that non-compliance with subrule 5.03(3) of the Rules of Civil Procedure renders the assignment ineffectual and unenforceable against him. In my view, that subrule has no application here.
[33] Rule 5.03 deals with the joinder of necessary parties in proceedings before this court. As set out in subrule 5.03(1), the purpose of joinder is to ensure that all persons are joined in a proceeding whose presence is necessary for the court to decide the issues effectively and completely. Subrule 5.03(3), on which Mr. Shtaif relies, sets a default presumption that the assignor must be joined in a proceeding by the assignee. The exception is where the assignment is absolute and notice in writing has been given to the person liable for the assigned debt. That procedural requirement dovetails with s. 53(1) of the Conveyancing and Law of Property Act, RSO 1990, c C.34, which requires that there be written notice of an absolute assignment before that assignment is effective in law.
[34] My difficulty with Mr. Shtaif’s argument is that the issues in this proceeding have already been fully adjudicated by Sanderson J., from whose judgment all appeal rights have been exhausted. Although Mr. Shtaif cites numerous cases on joinder of assignors and assignees, none deal with a similar post-judgment assignment. All of them are distinguishable on that basis alone. There are no extant issues to be decided in this action for which Midland BVI is a necessary party.
[35] In any event, subrule 5.03(3) does not require both assignor and assignee to be named if there is an absolute assignment and written notice of the assignment has been given to the debtor. The Instrument of Transfer provides for an absolute assignment. It specifically states that Midland Guernsey “unconditionally, irrevocably, and absolutely” transfers to Midland BVI all rights, title, interest and benefits in and to the judgments. The record before me also supports that Mr. Shtaif had actual notice of the assignment by at least early 2020, when he was evidently aware of the order of the Alberta Court of Queen’s Bench registering the judgment in favour of Midland BVI.
[36] Mr. Shtaif submits that there was no written notice of the assignment, as required by subrule 5.03(3)(b), until after both certificates of judgment were issued by the registrar. He submits that compliance with subrule 5.03(3) was a mandatory precondition to Midland BVI obtaining those certificates. I need not be overly concerned with whether written notice was given, since subrule 5.03(6) provides me with authority to relieve against joinder. To the extent that subrule 5.03(3) even still applies post-judgment (and I am not convinced that it does), the circumstances are such that I would exercise my discretion to grant relief from joinder.
[37] Judgment has been issued. Appeal rights from that judgment have been exhausted. The current dispute is not over advancing this action, but rather over the registrar’s issuance of the certificates of judgment. As I discuss below, requisitioning and obtaining the certificates did not involve determining any rights or liabilities of Midland Guernsey, Midland BVI, or Mr. Shtaif. Certificates of judgment are administrative in nature. These are not circumstances in which formal joinder of Midland BVI is necessary.
c. Should a declaration that the assignment was only valid in equity be granted?
[38] I have considered whether the declaration sought by Mr. Shtaif that the assignment was only effective in equity prior to March 2021 is necessary for a proper disposition of this motion and, if not, whether it is nevertheless appropriate for me to address it. I have determined that it is not necessary, so I am declining to decide the issue.
[39] In my view, the declaration Mr. Shtaif seeks serves only two purposes. First, it would support his argument that, absent a legal assignment, Midland BVI was not entitled to obtain the certificates of judgment. Second, the declaration would bear on the ongoing enforcement dispute between Midland BVI and Mr. Shtaif in Alberta.
[40] Whether the assignment of the judgment was equitable or legal, Mr. Shtaif does not dispute that there was an assignment. The fact of an undisputed assignment is all that is needed to fairly decide whether either of the certificates of judgment should be set aside. I thereby need not determine the nature of the assignment (i.e., legal or equitable) as of August 13, 2019 or at the time when the certificates of judgment were issued by the registrar.
[41] There are no pending enforcement or other proceedings against Mr. Shtaif in Ontario. The only ongoing enforcement proceedings are in Alberta. Accordingly, deciding whether the assignment was equitable or legal only bears on the Alberta proceedings, where Midland BVI’s standing to enforce the judgment is disputed. However, my decision on the issue will not be binding in Alberta. Conversely, given the history of the parties’ dispute, deciding the issue will likely lead to appeals in this province that ultimately advance nothing between the parties, since the same issue may still have to be argued in Alberta.
[42] Rule 1.04(1.1) provides that the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. In my view, deciding the issue of whether the assignment was effective only in equity or at law at this time in Ontario is disproportionate and unnecessary. That issue is more properly argued and decided in Alberta, where the dispute between Midland BVI and Mr. Shtaif will be played out.
Issue 3 – Should the certificates of judgment be set aside?
[43] As already discussed, Mr. Shtaif’s position is that the assignment cannot have been legally valid against him until notice of the assignment was served on him in March 2021 after Midland Guernsey had been revived. Mr. Shtaif submits that both certificates should therefore be set aside, since they were both issued well prior to valid legal assignment at a time when neither Midland Guernsey nor Midland BVI had standing to enforce the judgment, none of which was disclosed to the registrar.
[44] Similar to its position on validity of the assignment, Midland BVI submits that the Court of Appeal has already decided the issue. The Court of Appeal specifically held that “[t]here is no basis to set aside the certified copies of the judgments issued here”, commenting that “a nosy neighbour, a business competitor, a journalist, or an ex-spouse can all get certified copies of court documents without explanation or standing”: Midland Resources Holding Limited v. Bokserman, 2022 ONCA 73 at para. 39.
[45] I am not entirely clear on the purpose behind the Court of Appeal’s discussion about the certificates. Mr. Shtaif had sought an order setting aside the certificates of judgments in his notice of motion for leave to intervene and he again sought that relief in his amended notice of appeal to the Court of Appeal. However, Morgan J. did not discuss or make any ruling on Mr. Shtaif’s position on the certificates in either of his endorsement granting Mr. Shtaif’s intervenor motion or in his subsequent summary judgment decision. The Court of Appeal addressed Mr. Shtaif’s position, but in the context of Mr. Shtaif’s request for leave to appeal the costs award against him. In that context, the discussion may have been limited to costs or may have been included to particularize examples of Mr. Shtaif’s arguments that “went well beyond what was in issue” (as the Court of Appeal commented). It could also have been intended to dismiss the substantive relief sought in Mr. Shtaif’s amended notice of appeal.
[46] In my view, since it is not clear that the Court of Appeal’s comments constitute a “judicial finding” on the issue of validity of the certificates of judgment, it is appropriate that I address Mr. Shtaif’s specific arguments raised on this motion. Doing so will provide Mr. Shtaif with an explanation for why his arguments fail, which he does not seem to understand from the Court of Appeal’s decision.
[47] Mr. Shtaif’s primary argument is procedural in nature, namely that there was material non-disclosure by Midland BVI in obtaining the certificates by failing to disclose that Midland Guernsey lacked standing in the litigation, was dissolved, had transferred its assets, rights, title, and interests to Midland BVI, that no order to continue had been obtained, and that Mr. Shtaif was challenging the assignment. Mr. Shtaif submits that, had the registrar known this information, the certificates would not have been issued.
[48] Concerns about material non-disclosure do not arise here. The case law cited by Mr. Shtaif deals with material non-disclosure made in the context of ex parte motions. Obtaining the certificates of judgment did not involve Midland BVI bringing any motion or making arguments, nor did it involve any decision-making by the registrar. It was solely an administrative process in which the registrar was requested to certify the accuracy of information based on the court file.
[49] The form of certificate of judgment is not prescribed under the Rules of Civil Procedure. What the registrar issued is also not a certified copy of any document in the court file. The source of the form was a matter requiring review at the hearing, but it was ultimately confirmed to be a form prescribed in A Reg 487/81 under Alberta’s Reciprocal Enforcement of Judgments Act, RSA 2000, c R-6. The form of certificate is specifically required by s. 2 of the Reciprocal Enforcement of Judgments Act to support an application for registration of a judgment.
[50] The first certificate issued by the registrar in 2019 is substantially in the prescribed form, containing all of the prescribed information. It confirms undisputed information about the procedural history of the proceeding, including the dates of trial, judgment, and the subsequent appeal, as well as the quantum of judgment against Michael Shtaif. All of that information is available in the public court file. Essentially, the certificate only confirms the fact and quantum of the judgment. It says nothing about who is entitled to enforce it.
[51] The second certificate issued by the registrar in 2020 contains the same information as the first certificate, but adds a paragraph discussing the assignment by Midland Guernsey to Midland BVI. That paragraph is not part of the form prescribed under Alberta’s Reciprocal Enforcement of Judgments Act. The additional paragraph states as follows:
- On August 13, 2019, pursuant to an Instrument of Transfer (a copy of which is attached hereto as Schedule “A”), the plaintiff, Midland Resources Holding Limited, a corporation duly registered in the jurisdiction of Guernsey, transferred and assigned its interest in the judgment to Midland Resources Holding Limited, a corporation duly registered in the jurisdiction of the British Virgin Islands (attached hereto as Schedule “B” is a copy of the Certificate of Good Standing).
[52] In my view, this is no more than an administrative confirmation. It is not a substantive determination or declaration of Midland BVI’s enforcement rights. The registrar has only certified that the appended Instrument of Transfer transfers and assigns the interest of Midland Guernsey in the judgment to Midland BVI. Although Mr. Shtaif disputes that the Instrument of Transfer effected a legal assignment at the time the certificate was issued, the fact of the Instrument of Transfer document is not challenged. Put simply, the Instrument of Transfer says what it says, and it does purport to assign the judgment.
[53] I tend to agree with Mr. Shtaif that the registrar ought not to have certified the fact of an assignment, which is beyond the scope of the prescribed certificate of judgment and not information within the court file. However, to the extent that the registrar ought not to have included such a certification, it is only an irregularity. As set out in subrule 2.01(1), an irregularity does not render a document a nullity. The court may grant all necessary amendments or other relief to secure the just determination of the real matters in dispute.
[54] As already noted, Mr. Shtaif’s position is that the Instrument of Transfer only effected an equitable assignment of the judgment in August 2019, since the requirements of Guernsey law had not been met. He argues that legal assignment could not have occurred until the written notice of the assignment was given to him in March 2021. Nevertheless, Mr. Shtaif does not dispute that there was an assignment of the judgment. That is enough.
[55] The registrar certified only that the document says there has been a transfer and assignment. It does not certify the nature of the assignment, such as whether the assignment is legal or equitable or whether it is absolute or by way of charge. It does not certify compliance with s. 53(1) of the Conveyancing and Law of Property Act or any other law. Simply put, the certificate states only that there was a transfer and assignment of the judgment by the appended Instrument of Transfer, which is what the document says, and that Midland BVI is a duly registered corporation in the British Virgin Islands, which is supported by the appended Certificate of Good Standing. The registrar’s certification is not a determination that the transfer is valid and enforceable, which is beyond a registrar’s jurisdiction to decide.
[56] In my view, no amendment to the second certificate is required. The specific statements certified by the registrar are accurate. The irregularity of certifying information not in the court file need not be struck out and the certificate need not be set aside.
[57] I think it important for Mr. Shtaif to understand the distinction between Midland BVI’s ability to requisition and obtain the certificates of judgment and Mr. Shtaif’s legal position that Midland BVI lacks standing to enforce the judgment. The certificates are solely administrative in nature. Neither certificate decides Midland BVI’s standing to enforce the judgment in Ontario, Alberta, or elsewhere, nor do they decide anything about the rights and liabilities of Midland Guernsey, Midland BVI, or Mr. Shtaif.
[58] Since the certificates are not documents reflecting legal determinations, such as an order or judgment, it is immaterial whether there was non-disclosure to the registrar about the circumstances of the assignment, the lack of an order to continue (of which the registrar would have been aware), or that validity of the assignment was being challenged by Mr. Shtaif. The certificates accurately reflect the procedural history, the judgment, and even the fact of an assignment.
[59] As note by the Court of Appeal in dismissing the appeal from Morgan J.’s decision, certified copies of court documents may be obtained by any person upon proper requisition and payment of the required fee for a certificate. While technically not certified copies of court documents, these types of certificates of judgment are no different. Use of the certificates is a separate matter.
[60] Whether or not Midland BVI had standing to seek registration of the judgment in Alberta based on the certificates, as either a legal or equitable assignee of the judgment, is an issue that is ultimately beyond my jurisdiction to decide. It remains open to Mr. Shtaif to challenge Midland BVI’s standing to enforce the judgment in Alberta, as he has done. It is for the Alberta courts to determine if the certificates as issued comply with Alberta’s Reciprocal Enforcement of Judgments Act and are properly relied upon by Midland BVI as assignee in seeking to enforce the judgment.
[61] An Ontario court cannot dictate what is or is not legally sufficient in Alberta to support Midland BVI’s standing to enforce the judgment. I cannot decide whether Mr. Shtaif is or is not entitled to advance the same arguments in Alberta on invalidity and unenforceability of the assignment that were made before Morgan J., the Ontario Court of Appeal, and me. It is for the Alberta courts to consider and decide whether Midland BVI is entitled to enforce the judgment and whether it commenced enforcement proceedings in time. That may include deciding issues such as the timing of legal or equitable assignment of the judgment to Midland BVI, whether the nature and timing of the assignment has any bearing on when Midland BVI was entitled to pursue enforcement in Alberta, and whether Midland BVI was entitled to take the steps that it took using the issued certificates of judgment.
[62] On this motion, I am not dealing with how the certificates of judgment may be used and what may happen in Alberta. I am dealing solely with whether the certificates of judgment should be set aside. In my view, there is no basis to do so.
Disposition
[63] For the foregoing reasons, Mr. Shtaif’s motion is dismissed.
Costs
[64] The parties have exchanged and submitted costs outlines. I encourage them to resolve costs themselves. If they cannot, then costs submissions shall be made in writing. Midland BVI shall serve any costs submissions by June 8, 2022. Mr. Shtaif shall serve his responding costs submissions by June 17, 2022. There shall be no reply submissions absent leave of the court. Costs submissions shall not exceed four (4) pages, excluding any offers to settle and case law, and shall be submitted by email directly to my Assistant Trial Coordinator, Christine Meditskos, with proof of service. Unless costs submissions are exchanged and filed in accordance with these directions, the parties shall be deemed to have resolved costs.
ASSOCIATE JUSTICE TODD ROBINSON
DATE: May 26, 2022