



COURT OF APPEAL FOR ONTARIO

CITATION: SA Horeca Financial Services v. Light, 2014 ONCA
    811

DATE: 20141117

DOCKET: M44314

Weiler J.A. (In Chambers)

BETWEEN

SA Horeca Financial Services and SA Horeca
    Logistic Services

Plaintiffs (Respondents/Moving Party)

and

Andrew Martin Light

Defendant (Appellant/Responding Party)

Ruzbeh Hosseini, for the moving party

Safina Lakhani, for the responding party

Heard: November 10, 2014

Motions to lift an automatic stay on enforcement and for
    security for costs in relation to an appeal from the judgment of Justice John
    C. Murray of the Superior Court of Justice, dated August 1, 2014.

ENDORSEMENT

[1]

On August 1, 2014, SA Horeca Financial Services and SA Horeca Logistic
    Services (Horeca) obtained a summary judgment against Mr. Andrew Light. The
    judgment recognized and enforced the foreign judgment of EUR 214,562.29 that
    Horeca had obtained against Light in a Belgian court in 2011. Light launched an
    appeal, triggering an automatic stay on enforcement of the monetary judgment
    under rule 63.01(1) of the
Rules of Civil Procedure
. Horeca now brings
    these motions to lift the automatic stay on enforcement pending appeal,
    pursuant to rule 63.01(5), and to obtain security for costs respecting the
    appeal, pursuant to rule 61.06(1)(a). As an alternative to lifting the stay in
    its entirety, Horeca asks for an order allowing for an examination of Light in
    aid of execution.

A.

The factual background

[2]

On March 19, 2008, Horeca brought a lawsuit against Light in Brussels. On
    April 28, 2011, the Court of First Instance in Brussels rendered judgment
    against Light. The address Light provided to the court in Brussels at the time
    litigation commenced was an address in London, England. On May 10, 2011,
    Lights Belgian solicitor wrote to Horeca, stating, Please note that I
    informed the clients to lodge an appeal and I am waiting for their instructions.
    The decision is not provisionally enforceable. Considering that my clients
    reside in the United Kingdom, I would appreciate it if you waited for my
    updated information by the end of the month.

[3]

After the expiry of the appeal period, Horeca took steps to enforce the Belgian
    judgment in the United Kingdom. On July 30, 2012, Horeca obtained a
    registration order from a U.K. court. In attempting to serve the registration
    order in August 2012, Horeca learned that Light had sold his property in the
    United Kingdom in or about 2010 and it was thought he had immigrated to Canada.

[4]

Horeca then made efforts to obtain Lights address in Canada. These
    efforts are detailed in the affidavit of Horecas managing director, Mr. Michel
    Haelterman. They include requests to the English solicitors whom Horeca had retained
    to enforce the judgment in England to try and trace Lights whereabouts,
    internet searches, and letters to the Canadian ambassador in Belgium and the
    Belgian ambassador in Canada requesting assistance. In January 2014, Haelterman
    learned of Lights whereabouts while updating his LinkedIn account. Lights
    name appeared on the running banner on a side of Haeltermans LinkedIn page as
    being a professional known to him based on the information in his account.

[5]

In March 2014, Horeca issued a statement of claim in Ontario seeking to
    have its judgment recognized and enforced.

[6]

In an affidavit dated July 4, 2014, Light swore that he had moved to
    Toronto in May 2009 and that this fact was readily discoverable by Horeca.
    Light further swore that he had initially thought the dispute involved some EUR
    69,000, not the much larger sum awarded. Shortly after instructing his Belgian
    solicitor to appeal the Belgian courts decision, Light provided him with his
    updated contact information and a copy of his permanent residency card. Light said
    he heard nothing about the proceedings after that and did not think this
    unusual because his solicitor had told him court proceedings can take a long
    time. He received further information only in February 2014, when he received a
    letter dated January 20, 2014, demanding payment of the Belgian judgment.

[7]

Haelterman, on behalf of Horeca, acknowledged in his affidavit that as
    Light had a Belgian solicitor acting for him, and this solicitors address was
    the address for service of all proceedings, Light was under no obligation to
    update the Belgian court as to his address after the start of proceedings. In
    addition, Haelterman acknowledged that a Belgian counsel has an obligation of
    professional secrecy and is prohibited from divulging a clients personal
    information, such as his address.

[8]

Horeca, however, relied on Lights solicitors letter as a
    representation that Light was still residing in London as of May 10, 2011.
    Bankruptcy proceedings of a company associated with Light, which concluded at about
    the same time, also gave a London address for him, albeit not the same one as
    the address on file with the Belgian court. Haelterman also deposed that
    Lights LinkedIn account shows that he commenced employment in Toronto in May 2013,
    and that between September 2009 and August 2012, he was Vice President of
    Consulting for Price Waterhouse Coopers at the companys address in Washington,
    D.C.

[9]

When Light was cross-examined on his affidavit and asked to provide a
    copy of the communication he sent his Belgian solicitor respecting his change
    of address, he claimed solicitor and client privilege. He acknowledged that his
    LinkedIn page does not give any indication as to when he added the word
    Toronto to his profile. He has an Internet-based phone by Comwave that does not
    list via 411. He acknowledged that he had been terminated from his Toronto job
    in June 2014. Earlier, he had declined to give an undertaking not to dispose of
    or encumber any property he owned pending the outcome of the enforcement
    proceedings against him.

[10]

During
    these proceedings, Light raised a defence and cross-motion seeking to have the
    action against him dismissed based on the
Limitations Act, 2002
,

S.O.
    2002, c. 24, Sched. B. His sole argument was that the two-year limitation
    period in s. 4 applied and that the time to enforce the Belgian judgment had
    expired on June 19, 2013 (two years after the time for appeal had expired,
    which was June 20, 2011). He submitted that s. 16(1)(b), which states that
    [t]here is no limitation period in respect of 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 no application to a foreign judgment. In support of his
    position, he relied on McLean J.s decision in
Commission de la
    Construction du Québec v. Access Rigging Services Inc.
, 2010 ONSC 5987,
    104 O.R. (3d) 313 (Sup. Ct. J.). That decision held that the two year
    limitation period in s. 4 of the
Act
operates and that the word judgment
    in s. 16(1)(b) does not include a foreign money judgment. He also relied on the
    decision of this court in
Lax v. Lax
(2004), 70 O.R. (3d) 520, in
    which Feldman J.A. rejected the submission that the word judgment should
    include a foreign judgment in s. 45(1)(c), the equivalent to the present s.
    16(1)(b).

[11]

The
    summary judgment judge disagreed with
Access Rigging.
He held that the
    word judgment in s. 16(1)(b) does apply to a foreign money judgment and that
    Horecas action was not statute-barred. In the event he was wrong, the summary
    judgment judge held that Horeca did not discover its cause of action against
    Light until August 2012, when it learned that its Belgian judgment could not be
    enforced in England because he had moved. Although Light swore he had moved to
    Ontario in 2009, and that his whereabouts in Canada were discoverable after
    2009 through various online social networks and Internet searches, the summary
    judgment judge rejected this submission. He held it would be unconscionable if
    Light were now permitted to disavow his own false representation, made through
    his solicitor, that in May 2011 he was living in the United Kingdom. Consequently,
    if s. 4 applied, Horeca served the statement of claim before the expiry of the
    two-year limitation period in August 2014.

[12]

The
    evidence and the summary judgment judges reasons also disclose a second
    alternative basis on which it could be held that Horecas action is not statute
    barred. The summary judgment judge noted that pursuant to this courts decision
    in
Lax,
the limitation period in Ontario would not commence to run
    until Light returned to Ontario. As I have indicated, Haelterman deposed that
    Lights LinkedIn account shows he commenced employment in Toronto in May 2013,
    and that between September 2009 and August 2012, he was Vice President of
    Consulting for Price Waterhouse Coopers at the companys address in Washington,
    D.C. On the basis of this evidence, Light was not living in Ontario until after
    August 2012 and, again, the action would not be statute barred.

B.

Lifting the Stay

[13]

Rule
    63.01(5) gives an appellate court judge discretion to lift a stay imposed by
    rule 63.01(1) on such terms as are just. In considering whether to lift a
    stay, the court should have regard to three principal factors: i) financial hardship
    to the respondent if the stay is not lifted; ii) the ability of the respondent
    to repay or provide security for the amount paid; and iii) the merits of the
    appeal. See
Siwick v. Dagmar Resort Ltd.
, [1996] O.J. No. 4047.

[14]

In
    relation to the first requirement, Horeca submits it has suffered prejudice due
    to having to chase Light through three jurisdictions to enforce its judgment.
    The second requirement is not in issue as Horecas counsel undertakes, on
    behalf of his client, to hold in trust any proceeds realized from lifting the
    stay pending the appeals outcome. With respect to the third requirement, Horeca
    submits that given the strong factual findings of the summary judgment judge, the
    appeal appears to be frivolous.

[15]

Light
    submits that Horeca has failed to satisfy the first and third conditions. In
    particular, Light submits there is no evidence that Horeca, a sizable financial
    institution, has suffered any hardship. Light further points out that just
    because the ultimate resolution of the appeal may turn on factual findings does
    not mean it is without apparent merit.

[16]

I
    hold that the first requirement, hardship, has been satisfied. Although Horeca
    may not be suffering financial hardship in an absolute sense, it has suffered
    substantial delay and extra expense in enforcing its judgment against Light
    owing to Lights solicitors representation that he was still living in London
    in May 2011. On the third factor, having regard to the summary judgment judges
    strong alternate findings, which the evidence seems to amply support, I am of
    the opinion that the appeal appears to be frivolous and vexatious. The fact
    that Light has lost his job and refused to give any undertaking respecting his
    assets is also of concern to the court. Horeca will have no protection pending
    the hearing of Lights appeal.

[17]

In
Ontario Superior Court Practice, 2015
, Archibald, Killeen and Morton
    state that in determining what is just in accordance with rule 63.01(5), it
    is appropriate to consider: i) the grounds of appeal; ii) the parties position
    at trial; iii) what has happened since the trial; iv) the general circumstances
    of the case, including the trial judges reasons; and v) the probable delay
    between trial and appeal that cannot be controlled by the parties. See Todd
    Archibald, Gordon Killeen & James C. Morton,
Ontario Superior Court
    Practice, 2015
(Markham, Ont.: LexisNexis, 2014), at p. 1740.

[18]

Accordingly,
    I order that the stay pending appeal be lifted to the following extent. Horeca
    may examine Light in aid of execution. Following examination, in the event that
    Horeca wishes to take further steps against Light, it may bring a further
    motion to lift the stay.

C.

Security for Costs

[19]

Security
    for costs may be ordered under rule 61.06(1)(a) where there is good reason to
    believe that the appeal is frivolous and vexatious and that the appellant has
    insufficient assets in Ontario to pay the costs of the appeal. In this case,
    Horeca seeks $11,740.68 as security for costs of the appeal.

[20]

I
    have already indicated that I am of the opinion the appeal is frivolous and
    vexatious. I am not, however, prepared to assume that the appellant has
    insufficient assets in Ontario to pay the costs of an appeal just because he is
    no longer an employee. Lights affidavit indicates that he is currently
    self-employed and that he is doing work under contract. Accordingly, I hold
    that Horeca has not satisfied the second part of the rule for security for
    costs.

[21]

Horecas
    motion for security for costs is dismissed without prejudice to it bringing a
    further motion once it has conducted an examination of Light in aid of
    execution.

D.

Costs of the motion

[22]

Having
    regard to the positions of the parties and their costs submissions, costs of
    the motions are fixed at $2,500 payable by Light to Horeca forthwith.

K.M. Weiler J.A.


