Court File and Parties

Court File No.: CV-24-00714137-0000 Date: 2024-06-04 Ontario Superior Court of Justice

Re: ISIS MUNIZ LUZ, Applicant And: SEBASTIAN PAWELCZUK, Respondent

Before: L. Brownstone J.

Counsel: Sheldon Inkol and Steven Kelly, for the Applicant No one appearing for the Respondent

Heard: May 17, 2024

Endorsement

[1] The applicant seeks to enforce a judgment of the District Court of Clark County, Nevada dated September 18, 2023, awarding her $157,158.96 in United States dollars against the respondent.

[2] The respondent did not appear at the return of this application. For the reasons that follow, I proceeded to hear the matter in the absence of the respondent, and I grant the requested judgment.

Decision to Proceed in the Respondent’s Absence

[3] The application seeks to enforce a judgment granted in favour of the applicant in Nevada after a three-day trial. The respondent participated in the hearing in Nevada through counsel. His counsel approved the form and content of the Nevada judgment. The existence of that judgment is known to the respondent.

[4] On March 2, 2024, the respondent was served with the notice of application and application record in this proceeding. A copy of the materials in a sealed envelope with the respondent’s name on it was left with the respondent’s adult brother at his home address. Another copy of the documents was mailed to the respondent.

[5] The respondent was asked to provide dates on which he would attend Civil Practice Court (CPC). When no answer was received, he was advised by letter sent by courier of the date on which applicant’s counsel would be attending at CPC to secure a date for the return of the application.

[6] The applicant attended CPC on March 15 at which time Chalmers J. scheduled the application to be heard on May 17, 2024, and set out a schedule for the exchange of materials.

[7] A process server attended the respondent’s address on March 16, 17 and 19 to attempt to serve the respondent with the endorsement of Chalmers J. The note left by the process server on March 16th requesting a call back was not on the door when he returned on the 17th. A neighbour confirmed that “Sebastian” resides at the address.

[8] In addition, there is an ongoing defamation action in which the respondent is the plaintiff and the applicant is the defendant. The respondent has counsel in that action. That counsel was asked if he was representing the respondent in this matter. No response to those queries was in the record before me. That counsel was, however, provided a copy of the application record and the endorsement of Chalmers J. In addition, the respondent himself was advised by email of the application date and was provided with the endorsement of Chalmers J.

[9] Further, the applicant’s factum was served on the respondent by email and mail. In addition, the process server attended at his residence three times. There were cars in the driveway and a dog barking, but no one answered the door. The process server left a hard copy of the factum at the residence.

[10] The court sent the respondent an email providing him access to CaseLines and Zoom details for the hearing of this application.

[11] The respondent did not respond to any of these communications, did not file materials, and did not attend the application. The court waited fifteen minutes before starting in accordance with rule 3.03(2).

[12] I am satisfied that the respondent was properly served with the originating process. Further, I am satisfied that he was made aware of the attendance today by counsel and by the court, and that he was provided with the applicant’s factum. It is clear from the record that he has chosen not to participate in this matter, despite all attempts having been made to provide him what that opportunity.

[13] I therefore proceeded to hear the application on its merits.

Should the Court Issue an Order Enforcing the Nevada Judgment?

[14] The judgment the applicant seeks to enforce was issued by Judge Crystal Eller on September 13, 2023 after a trial that took place from September 11-13, 2023. The underlying facts were that the parties, who had been in a romantic relationship, travelled together in August 2021 for the respondent to attend a trade show for his work. The respondent engaged in serious physical violence against the applicant in their hotel room. The judge hearing the trial granted the plaintiff’s motion for a directed verdict after her evidence was called, stating: “The Court finds that there is substantial evidence that a vicious, severe battery occurred and that it was the defendant who did the battering. And so based on liability for the allegations in the complaint, the directed verdict is granted.” Judge Eller granted a verdict in the amount of USD $157,158.96, divided as follows: $7,158.90 for Past Medical Expenses; $50,000.00 for Past Pain and Suffering; and $100,000.00 for Punitive Damages.

[15] Courts are to recognise and enforce legitimate judicial acts form other jurisdictions as a matter of comity: Chevron Corp. v. Yaiguaje, 2015 SCC 42, at para 53.

[16] In order for this court to recognise and enforce a foreign judgment, the judgment must be final and conclusive, and must be one in respect of which the foreign court properly assumed jurisdiction. The court must also consider whether any of the defences available to a domestic defendant – fraud, lack of natural justice, or public policy – are available to the defendant: Dish v. Shava, 2018 ONSC 2867 at para. 11, aff’d, 2019 ONCA 411.

[17] The proper assumption of jurisdiction may be established in two ways. The parties may have voluntarily attorned to the foreign court, or there may be a real and substantial connection between the subject matter of the proceeding and the foreign jurisdiction.

[18] Here, the respondent clearly attorned to the Nevada court. He was represented throughout the trial, and his counsel actively participated on his behalf, advising the court that she was “in excellent contact” with the respondent. The respondent’s participation was not related to contesting jurisdiction Rather, the respondent took active steps on the merits of the case, through his counsel. He brought a motion seeking to stay the matter pending the outcome of related criminal proceedings, which was denied. He raised many substantive defences to the claim. On his behalf, the respondent’s counsel cross-examined the applicant and her other witnesses at trial. I find that he attorned to the Nevada court’s jurisdiction, which it properly exercised.

[19] Having found that jurisdiction exists by attornment, I do not need to consider whether a real and substantial connection to Nevada exists: Mehralian v. Dunmore, 2023 ONCA 806 at para. 30.

[20] However, I note that in this case, I would have found that a real and substantial connection with Nevada exists which would ground the Nevada court’s jurisdiction. The fact that the tort occurred in Nevada provides a direct connection to the cause of action in the case before it: Beals v. Saldanha, 2003 SCC 72, [2003] 3 SCR 416 at para. 32 Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 SCR 572 at para. 90.

[21] In addition, the judgment is final and conclusive. It is a final judgment after trial, not an interim decision. It was rendered in September, 2023. The time for appeal has passed and no appeal has been taken.

[22] Finally, no reason was presented to the court as to why recognition and enforcement should not be granted. The record before the court reveals no basis for potential defences of fraud, lack of natural justice or public policy that would bar the enforcement of the judgment: Beals, at para. 35.

Costs

[23] In fixing costs under s. 131 of the Courts of Justice Act, RSO 1990, c. C.43 and rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a discretionary exercise, I may consider a number of factors including the result of the proceeding, the principle of indemnity, the amount the unsuccessful party could reasonably expect to pay, the amount claimed and the amount recovered in the proceeding and the proceeding’s complexity. Ultimately, I must consider what is fair and reasonable for the unsuccessful party to pay: Boucher v. Public Accountants Council for the Province of Ontario at para. 26.

[24] The applicant’s costs on a partial indemnity scale are $7,500. Applying the factors above, I find that these costs are reasonable and proportionate, and fair for the respondent to pay.

Disposition

[25] The application is granted. The judgment of the Clark County Nevada District Court, dated September 18, 2023, in Court File No. A-21-839356-C, shall be recognised as a judgment in the Ontario Superior Court of Justice. Costs of $7500 inclusive shall be paid within 30 days.

[26] Counsel provided a draft order which I shall sign, as approval of the form and content of the order by the respondent is dispensed with.

L. Brownstone J. Date: June 6, 2024