Court File and Parties
COURT FILE NO.: CV-23-00702788
DATE: 2024-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TOMMY ALASTRA Applicant
– and –
TROY JAMES HOGG Defendant
Counsel: Steven Bookman and David Eddenden for the Applicant
READ: October 1, 2024
Papageorgiou J.
Overview
[1] The Applicant seeks to register a default judgment made in the Superior Court of California against the Respondent in the amount of $448,459.15 USD.
[2] This matter was sent to a case conference. The Respondent did not attend and Centa J. directed that this matter proceed by way of written default Application in writing, subject to the Respondent filing a Notice of Appearance by August 30, 2024, in which case the matter would proceed to a case conference. Centa J. established timelines for this.
[3] The Respondent did not file a Notice of Appearance and as such the matter proceeded by way of default Application.
Decision
[4] For the reasons that follow I am granting the Order sought.
Analysis
[5] At common law, a foreign judgement is, in effect, a debt that can be enforced by a cause of action to claim payment of the debt, and absent evidence of fraud or of a violation of natural justice or of public policy, the enforcing court is not interested in the substantive or procedural law of the foreign court that granted judgement. In an action to enforce a foreign judgement, an Ontario court will not relitigate the underlying litigation that gave rise to the judgement, and if the judgement is proven and is final, the Ontario court will enforce the foreign court's judgement with a judgment of its own. Dead End Survival, LLC v. Marhasin, 2019 ONSC 3453 at para 19.
[6] Ontario courts will recognize and enforce foreign judgements where: a. The foreign court had a real and substantial connection with either the subject matter of the proceeding or the Respondent; b. The judgement is final and conclusive; and c. The defences of fraud, public policy or lack of natural justice do not apply. Dead End Survival, L.L.C. v. Marhasin, at para 5; Dish v. Shava, 2018 ONSC 2867 at para 11; Dish Network L.L.C. v. Shava IPTV Network LLC. 2019 ONCA 411.
[7] The "real and substantial connection" requirement is the overriding factor in the determination of the jurisdiction of a foreign court and once it is determined that a foreign court properly assumed jurisdiction, a foreign judgment is prima facie enforceable. Dead End Survival, LLC v. Marhasin, at para 22. JGB Collateral LLC v. John Rochon and Donna Jean Hewitt Rochon, 2020 ONSC 1732 at para 5. 19.
[8] In determining whether there is a "real and substantial connection", the domestic court should consider the connections between the subject matter of the action, the alleged wrongdoing, the place where the damages are suffered, as well as the transactions of the parties and with the action. The connection must be real and substantial but not necessarily the most real and substantial connection of all possible jurisdictions that might have a connection to the dispute. The real and substantial connection is not a rigid test and must ultimately be guided by order and procedural fairness, as opposed to mechanical counting of contacts and connections. Dead End Survival, LLC v. Marhasin, at para 23.
[9] In Dish v. Shava, at para 17, Justice Pattillo stated that whether a defendant could "reasonably anticipate being hailed into court" in the forum is critical to the analysis of whether a foreign court properly exercised jurisdiction in an action in that it had a real and substantial connection with either the subject matter of the action or the defendant.
[10] In the subject Application, there is a real and substantial connection between this dispute and the jurisdiction of California: a. The Respondent repeatedly travelled to California and presented himself as a businessman who was seeking to invest in events, films and business ventures in California. b. The Respondent attended business meetings in California in which he solicited business in the film industry. c. The Respondent entered into an agreement to invest in the California-based film project, "Habit". d. The Respondent entered into an agreement to sponsor an Oscars event located in Beverly Hills, California. c. The Applicant is an individual residing in Los Angeles County in the State of California where he works as a well-regarded producer in the film and television production industry. The financial and reputational losses suffered by the Applicant occurred in California.
[11] As a result of the nature of the Respondent's conduct, he could have reasonably anticipated being hailed into court to answer the injury that he caused in this forum.
[12] A Canadian defendant sued in a foreign jurisdiction has the ability to redress any real or apparent unfairness from the foreign proceedings and the judgment's subsequent enforcement in Canada. The defences applicable in Ontario are natural justice, public policy and fraud. Beals v. Saldanha, 2003 SCC 72 at para 35.
[13] The Respondent has not responded to raise any defence of fraud and has not taken any steps to defend this proceeding in Ontario or California despite being duly served in both matters. In any event, in Beals v. Saldanha, 2003 SCC 72, at paras 52-53, the Supreme Court of Canada held that where foreign default proceedings are not inherently unfair, failing to defend the proceeding, by itself, should prohibit a defendant from later claiming fraud. In the present case, the appellants made a conscious decision not to defend the California action against them. The pleadings of the respondents then became the facts that were the basis for the California judgment. As a result, the appellants are barred from attacking the evidence presented to the California judge and jury as being fraudulent.
[14] There are no public policy concerns for a Canadian court to refuse to entertain the underlying causes of action in the Applicant's Superior Court of California County of Los Angeles proceeding,
[15] There is no issue as to the Respondent being afforded natural justice in the California-based proceeding against him. The Respondent was duly served pursuant to the protocol of the Hague Convention for the service of foreign process and was afforded a fair adjudicative process in California. "Fair process" is one that reasonably guarantees basic procedural safeguards such as judicial independence and fair ethical rules governing the participants in the judicial system. The burden of alleging unfairness in a foreign legal system rest with the Respondent who has taken no steps whatsoever in this Application. Beals v. Saldanha, at para 61.
[16] Judgment to go as sought.
Papageorgiou J.
Released: October 1, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TOMMY ALASTRA Applicant
– and –
TROY JAMES HOGG Defendant
REASONS FOR JUDGMENT
Papageorgiou J.
Released: October 1, 2024