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Décision

SUPERIOR COURT

 

 

JB 3018

 
SUPERIOR COURT

 

CANADA

PROVINCE OF QUEBEC

DISTRICT OF

MONTREAL

 

No:

500-17-015612-032

 

 

 

DATE:

June 9, 2004

______________________________________________________________________

 

By:

THE HONOURABLE

ROGER E. BAKER, J.S.C.

______________________________________________________________________

 

 

THE SOCIETY OF LLOYDS

Plaintiff/Respondent

v.

SEYMOUR ALPER

Defendant/Petitioner

 

 

______________________________________________________________________

 

TRANSCRIPT OF REASONS AND JUDGMENT

RENDERED ORALLY ON AUGUST 21, 2003

______________________________________________________________________

 

[1]                The Court has heard an Exception on behalf of Defendant/Petitioner to dismiss the Plaintiff/Respondent's action, under 165(4) of the Code of Civil Procedure of Quebec.

[2]                The main case is a Motion for Recognition and Enforcement of a Foreign Judgment under Articles 3155 C.C.Q. and 785, 786 C.C.P.

[3]                In substance, the main action seeks to have recognized by a Quebec Court a judgment rendered in United Kingdom in 1998 by a High Court judge against the Defendant Seymour Alper for an amount which now approximates $ 800,000.

[4]                Against the judgment, to which I have just referred, the Defendant Alper has brought the Motion to Dismiss under Art. 165(4) C.C.P. which reads as follows:

165. The defendant may ask for the dismissal of the action if:

[...]

The suit is unfounded in law, even if the facts alleged are true. "

[5]                The nub of the complaint by this Defendant in the Motion is that the judgment which is sought to be recognized contains no reasons for judgment, which would put it in violation of a basic rule of Quebec law according to the Defendant, which would not give a judge the opportunity to determine whether the judgment being sought to be recognized is in conformity with the ordinary rules. Consequently, no judgment could possibly be rendered in favour of recognizing this judgment and accordingly the Motion seeks the dismissal of the action.

[6]    The substantive law which is the basis of a Motion in recognition of a foreign judgment is found in Title Four of the Civil Code of Quebec, particularly Chapter 1, article 3155 which reads as follows:

" TITLE FOUR

RECOGNITION AND ENFORCEMENT OF FOREIGN DECISIONS AND JURISDICTION OF FOREIGN AUTHORITIES

CHAPTER I

RECOGNITION AND ENFORCEMENT OF FOREIGN DECISIONS

3155. A Qubec authority recognizes and, where applicable, declares enforceable any decision rendered outside Qubec except in the following cases:

(1) the authority of the country where the decision was rendered had no jurisdiction under the provisions of this Title; "

[7]                Counsel to Mr. Alper made no suggestion that Article 3155(1) would apply.

" (2) the decision is subject to ordinary remedy or is not final or enforceable at the place where it was rendered; "

[8]                Counsel to Mr. Alper did not suggest that 3155(2) applies:

" (3) the decision was rendered in contravention of the fundamental principles of procedure; .


" (4) a dispute between the same parties, based on the same facts and having the same object has given rise to a decision rendered in Qubec, whether it has acquired the authority of a final judgment (res judicata) or not, or is pending before a Qubec authority, in first instance, or has been decided in a third country and the decision meets the necessary conditions for recognition in Qubec; "

[9]                Again, counsel to Mr. Alper has made no suggestion that 3155(4) applies:

" (5) the outcome of a foreign decision is manifestly inconsistent with public order as understood in international relations; "

[10]            The Defendant has argued that only the exceptions (3) and (5) of the Article 3155 C.C.Q. apply.

[11]            The judgment which has been filed with the originating motion is very short, as a consequence of which I shall read it in its entirety:

" The 11th day of March 1998

The Defendant having given notice of intention to defend herein and the Court having under Order 14, rule 3 ordered that the Judgment as hereinafter provided be entered for the Plaintiff against the Defendant

IT IS THIS DAY ADJUDGED that the Defendant do pay the Plaintiff the sum of 305,284.85 being 271,837.29 principal and 33,447.56 interest together with costs to be taxed if not agreed. "

[12]            It is the submission of counsel to Mr. Alper that this judgment, as it is written, is not subject to any scrutiny whatsoever by a Qubec judge, and as a consequence, it cannot possibly meet the standards of recognition under the law of the province of Qubec.

[13]            This motion needs to be dealt with at two levels. Firstly, the nature of the attack against the proceeding, and then the form under which the attack has taken place, which is a motion under 165(4).

[14]            There is that I can see on a reading of the judgment of which recognition is sought and a reading of the Civil Code of Quebec, no violation of any principle of the law of the province of Qubec.

[15]            There is no violation or contravention of any fundamental principles of procedure, as it is stated to be the exception to the general rule under Article 3155(3) C.C.Q. and as argued by the counsel to Mr. Alper.

[16]            Nor do I see that there is any issue of public order that is manifestly inconsistent as understood in international relations as suggested in Article 3155(5).

[17]            The main case is a very simple matter. It seeks to exemplify or recognize a foreign judgment, in this case a judgment rendered in United Kingdom for a very considerable amount of money.

[18]            One cannot ignore the dictate of the introduction to Art. 3155 which I will repeat so that there will be no mistake:

" 3155. A Qubec authority recognizes and, where applicable, declares enforceable any decision rendered outside Qubec except in the following cases: "

[19]            The foregoing are the general rules, and for the general rules to be ignored, one must fall within the exceptions which follow, which are articulated in sub-sections 1 through 6. Only two of which have been argued: (3) and (5) which I have already said do not apply.

[20]            In the case of Mutual Trust Co. vs. St-Cyr[1], one finds under the pen of Madam Justice Rousseau-Houle at page 633 the following:

" La dcision trangre dont le rsultat serait incompatible avec une rgle qubcoise d'application imprative ne parat plus pouvoir tre carte pour ce motif. Le texte de l'article 180.1 C.P. cet effet n'a pas t repris. Le rejet de la dcision trangre n'aura lieu que dans le cas o son rsultat est manifestement incompatible avec l'ordre public ou lorsqu'il y a eu violation des principes essentiels de la procdure. La notion d'ordre public qui prvaut est celle qui est entendue dans les relations internationales et non dans l'ordre interne. "

[21]            The case before the Court has absolutely nothing to do with international relations, nor does it have anything to do with a Charter violation as has been suggested by counsel to Mr. Alper. This is nothing more nor nothing less than an internal procedure or matter under the laws of the Province of Qubec in conjunction with a requirement which needs to be fulfilled under the Civil Code 3155(1) through (6) inclusively. And Madam Justice Rousseau-Houle continues at page 633:

" Il semble clair que la dcision ontarienne n'enfreint aucune valeur morale, sociale, politique ou conomique au point de heurter de faon manifeste la notion d'ordre public international ni mme celle d'ordre public interne. "

[22]            The Court has also considered the judgment of the Quebec Court of Appeal, which is referenced as J.E. 98-2091. This case dealt with a lack of motives in a judgment by a lower court. One finds at the bottom of page 4, the following: " [...] Il n'y a donc pas de motifs l'appui du jugement rendu le 2 avril 1998. Bien que l'absence de motifs puisse tre  regrettable , note Cour a dj jug que cela n'est pas fatal "


 

[23]            The motion is rejected with costs.

 

 

__________________________________

ROGER E. BAKER, J.S.C.

 

Me Edward E. Aronoff

Mendelsohn

Attorneys for Defendant/Petitioner

 

Me Ronald L. Stein

De Grandpr Chait

Attorney for Plaintiff/Respondent

 

Date of hearing:

August 21, 2003

 



[1] [1996] R.D.J. C.A., Nov. 21, 1996, p. 623