Ontario court enforces Italian judgment in Venezia/Sincies v. King

At first glance, the recent judgment of Whalen, J. of the Ontario Superior Court of Justice in Venezia/Sincies v. King, 2010 ONSC 6453– a decision on enforcement of foreign judgments— should be of interest to international litigators.  In Venezia/Sincies v. King, the Plaintiff, Mario Venezia (“Trustee”) as Trustee in Bankruptcy for Sincies Chiementin S.p.A. (“Sincies”)  successfully moved for summary judgment to recognize and enforce a judgment issued by an Italian court in Rome on October 1, 2001, against the Defendant, Gregory P. King (“King”) for the liquidated sum of U.S. $600,000 plus interest, currency appreciation and costs. Since the judgment is 208 paragraphs long, you may read it at your own leisure or wait for Quicklaw or Westlaw to provide a headnote. In the meantime, here are a couple of points to consider:

1. The Muscutt factors  (now modified by the Court of Appeal in Van Breda v. Village Resorts Ltd/Charron Estate v. Village Resorts Ltd. (2010), 98 O.R. (3d) 721 (C.A.), pending appeal to the S.C.C.) as part of the “real and substantial connection” test apply equally to enforcement of foreign judgments (at para. 74-78; 86-90) [see my original post on Van Breda here]

There is some fuzzy logic at work here. By engrafting the same factors for jurisdiction simpliciter (i.e. whether an Ontario court should assume jurisdiction over a foreign defendant in an action brought in Ontario) to whether a foreign court has properly asserted personal and/or subject-matter jurisdiction over an Ontario defendant, puts the proverbial domestic cart before the foreign horse. There is no indication that the Supreme Court of Canada in Beals v. Saldanha either explicitly endorsed or tacitly approved this analytical approach. Moreover, the enumerated grounds for establishing a rebuttable presumption of jurisdiction under Ontario Rule 17.02 are unlikely to be functionally equivalent in the foreign court rules of procedure. Recall that Italy is civil law jurisdiction. Unless the Ontario court is willing to undertake a proper comparative law analysis between the Ontario and foreign legal system (which most busy judges are disinclined to do so), procedural justice dictates that the foreign court explain how and why it took jurisdiction in the original instance; namely;

  • consented-based jurisdiction (by attornment, submission, agreement); or
  • personal jurisdiction (by physical presence, carrying on business or proof of valid service under the Ontario rules), or
  • assumed jurisdiction (under the foreign court’s conflict of laws rules).

The last bullet-point is perhaps the most significant. One method would involve the Ontario court taking judicial notice of the foreign court’s conflict of laws rules gleaned from the foreign court’s written reasons. Although more cumbersome and less cost-effective, an alternative approach would require the plaintiff to prove the foreign law by affidavit evidence from a duly qualified expert in the procedural law of the foreign jurisdiction.

2. The defence of laches does not appear to apply in circumstances where the foreign judgment creditor delays in notifying the Ontario judgment debtor of the foreign judgment:

[203] The Defendant complained that the Trustee took five years to inform him of the Italian judgment.  I fail, however, to see how that is a breach of natural justice or that it is contrary to public policy.  The bringing of the present application does not offend any limitation period. What was the prejudice to the Defendant arising from this timing issue, apart from having to face a properly obtained foreign judgment at all?  There was no breach of natural justice or public policy arising from this issue.  The likely deterioration of evidence through passage of time is as much or more the fault of the Defendant as a result of his decision not to appear before the Italian court. [emphasis added]

It is noteworthy that in Lax v. Lax, 2004 CanLII 15466, (2004), 70 O.R. (3d) 520, 239 D.L.R. (4th) 683 (ON C.A.), the Court of Appeal for Ontario held that the limitation period to enforce a foreign judgment was six years from the date of the foreign judgment (now 2 years under the Limitations Act, 2002):

[29]         In summary, a foreign judgment cannot be enforced in Ontario except by first suing on the judgment to obtain a domestic judgment against the debtor. That action must be brought within six years from when the cause of action arose, which is the date of the foreign judgment. However, if the debtor was not in Ontario on the date of the judgment, then the six years does not commence until the debtor returns to Ontario.[3] Once the domestic judgment is obtained, it can be enforced in the usual way and is subject to the twenty-year limitation period.

Footnote 3 above from the judgment in Lax v. Lax reads:

“[3] No issue was raised on the appeal whether s. 48 applies only to a person who returns to Ontario after leaving Ontario or whether it also applies to a person who comes to Ontario for the first time after the cause of action arose.”

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