April 24, 2015
The Court of Appeal for Ontario has recently released a significant decision which is a blow to judgment debtors who are attempting to avoid their obligations stemming from a foreign judgment.
In SA Horeca Financial Services v. Light, 2014 CarswellOnt 16099, the plaintiffs, SA Horeca Financial Services and SA Horeca Logistic Services (collectively “Horeca”) obtained judgment in Belgium against the defendant, Andrew Martin Light (“Light”) on April 28, 2011, from the court of first instance in Brussels. Shortly after judgment was rendered, Light’s Belgian solicitor wrote to Horeca indicating that Light was domiciled in England and he was anticipating appealing the Belgian judgment. Light did not appeal and shortly after the expiry of the appeal period, Horeca took steps to enforce the foreign judgment in the United Kingdom. Approximately 16 months after obtaining judgment in Belgium, Horeca learned that Light had sold his property in the United Kingdom and it was believed he had immigrated to Canada.
In January 2014, Horeca learned that Light was domiciled in Toronto after coming across Light’s LinkedIn account. Horeca then initiated a statement of claim in March 2014 and brought a successful summary judgment motion against Light on August 1, 2014.
Light brought an appeal to the Ontario Court of Appeal of the summary judgment motion enforcing the Belgian judgment. Pursuant to the operation of Section 63.01(1) of the Rules of Civil Procedure by filing the notice of appeal, the judgment obtained against Light was stayed and Horeca was unable to enforce the judgment while the appeal was pending. Moreover, during his cross-examination, Light refused to provide an undertaking that he would not dispose or encumber any property he owned pending the outcome of the enforcement proceeding. There was obviously a concern by Horeca (which appeared to be shared by the Court of Appeal) that Light would depose of assets pending the outcome of the appeal. As a result, Horeca brought a motion pursuant to Rule 63.01(5) of the Rules of Civil Procedure to lift the automatic stay pending the outcome of the appeal.
K.M. Weiler J.A., in Chambers, ruled in Horeca’s favour and lifted the stay. Weiler J.A. determined that Horeca had suffered financial hardship and was prejudiced in chasing Light through 3 jurisdictions to enforce its judgment. Moreover, Horeca’s counsel wisely offered to hold in trust any proceeds realized from execution, pending the outcome of the appeal. Finally, Justice Weiler determined that the appeal appeared to be frivolous and vexatious and as a result, the automatic stay was lifted.
Weiler J.A. also had some interesting comments with respect to the issue of limitation defences being raised by Light. Weiler J.A. endorsed the motion’s judge ruling that the Ontario proceeding was not statute barred, despite the fact it was commenced more than 2 years after the appeal period expired with respect to the Belgian judgment. The motion judge determined that Section 16(1)(b) of the Limitations Act 2002, C. 24, Sch. B, which reads, “[t]here is no limitation period in respect of (b) a proceeding to enforce an order of a court or any other order that may be enforced in the same way as an order of a court” has broad enough to encompass a foreign judgment.
The Horeca decision is of great assistance to foreign litigants attempting to enforce a judgment in Ontario. The plaintiffs were able to enforce its judgment in a timely fashion and the defendants were precluded from relying upon a frivolous and vexatious appeal in order to ostensibly dispose of assets in the interim.