



COURT OF APPEAL FOR ONTARIO

CITATION:
Sincies Chiementin
    S.p.A. v. King, 2012 ONCA 653

DATE: 20121001

DOCKET: C53076

MacPherson, Armstrong and Blair JJ.A.

BETWEEN

Mario Venezia in his capacity as trustee in
    bankruptcy of Sincies Chiementin S.p.A.

Plaintiff (Respondent)

and

Gregory P. King

Defendant (Appellant)

Sean Dewart and Tim Gleason, for the appellant

Randy Pepper, for the respondent

Heard: September 24, 2012

On appeal from the judgment of Justice W. Larry Whalen of
    the Superior Court of Justice, dated November 30, 2010.

By
    the Court:

[1]

The appellant, Gregory King, a Toronto lawyer who specializes in
    international business law, appeals the judgment of Whalen J. of the Superior Court
    of Justice dated November 20, 2010, granting summary judgment to recognize and
    enforce a judgment of the Civil Court of Rome dated August 25, 2001.

[2]

The Italian court held that King was liable to the Italian corporation
    Sincies, essentially in tort, for $600,000 in damages plus costs, for his
    professional conduct as a lawyer in a failed joint venture.

[3]

In a comprehensive judgment (208 paragraphs), the motion judge held that
    there was a real and substantial connection between the subject matter of the
    action and the Italian court, even though King did not attorn to its
    jurisdiction, and that the decision of the Italian court deserved to be
    recognized and enforced.

[4]

In reaching this decision, the motion judge relied heavily on the
    decisions of the Supreme Court of Canada in
Beals v. Saldanha
, [2003]
    S.C.R. 416, and this court in
Muscutt v. Courcelles
(2002), 60 O.R.
    (3d) 641, and
Charron Estate v. Village Resorts Ltd.
, 2010 ONCA 84.

[5]

This appeal was originally scheduled to be heard on May 30, 2011, but
    was adjourned pending the decision of the Supreme Court of Canada in
Charron
    Estate
and a companion case. The Supreme Court of Canada rendered its
    decision on April 18, 2012 under the style
Club Resorts Ltd. v. Van Breda
,
    2012 SCC 17.

[6]

The appellants principal submission is that the motion judge erred by
    finding that there was a real and substantial connection between Kings
    alleged misconduct and Italy.

[7]

We agree that the motion judges analysis was anchored in this courts
    decisions in
Muscutt
and
Charron Estate
and that he did not
    have the benefit of the Supreme Court of Canadas decision in
Van Breda
.
    However, as the appellant acknowledges in his factum,
Van Breda
simplified and clarified the law. Although parts of the eight-pronged test
    from
Muscutt
were jettisoned, there is really very little difference
    between this courts analysis in
Charron Estate
and the Supreme Court
    of Canadas decision in
Van Breda
with respect to the core factors to
    be considered.

[8]

In
Van Breda
, Lebel J. fashioned a list of four specific
    connecting factors that lead to a presumption that a court has jurisdiction.
    The third factor is that a tort was committed in the courts territorial
    jurisdiction.

[9]

In this case, the Civil Court of Rome carefully considered, on its own
    accord because King did not attorn to the jurisdiction, the question of
whether a tort had been committed in Italy. The court
    concluded that, with regard to extra-contractual action (i.e. the tort
    claim), the tort was committed, and damage resulted, in Italy.

[10]

In
    our view, a Canadian court should be very cautious in its scrutiny of the
    decision of a foreign court in determining whether a tort has been committed in
    its jurisdiction. In short, the Civil Court of Rome is better placed than us to
    determine its own laws.

[11]

Once
    it is determined that a tort has been committed in the foreign jurisdiction, it
    brings the case within the third connecting factor from
Van Breda
, and
    a real and substantial connection is presumptively established.

[12]

Here,
    the motion judge properly concluded that since there was a real and substantial
    connection between the subject matter of the action and the Italian court, the
    Italian judgment should be recognized and enforced in Ontario. Under
Beals
,
    at paras. 28-29, the principles of comity and reciprocity inform a Canadian
    judges determination of whether a foreign judgment should be enforced. The
    motion judge, at para. 189, was keenly aware of this:

Were the situation reversed, so that Sincies was a Canadian
    corporation with head offices in Ontario and all of the other facts discussed
    applying, and King as an Italian lawyer who assumed the same role he had in
    fact assumed in our case, I have no doubt that an Ontario court would have
    readily assumed jurisdiction I see no reason why principles of comity and
    reciprocity should not be recognized in the circumstances of this particular
    case and foreign judgment.

[13]

Further,
    the motion judge was cognizant of the principles of order and fairness that
    underlie the modern concept of private international law, and concluded, at
    para. 186:

It is not unfair that a professional who operates on a
    worldwide basis should be subject to foreign jurisdictions. [King] voluntarily
    entered into a solicitor/client relationship with a company he knew to be based
    in Italy, to whom he expected to give advice and from which he knew he would
    receive instructions, whatever dealings and transactions might occur as a
    result and wherever they might occur.

We agree with this analysis. The appellant knew that
    his advice would be received and acted on in Italy, as the evidence indicates
    it was. He is a sophisticated party who should have expected to be called to
    account in Italy.

[14]

The
    appellant also contends that the motion judge erred in concluding that there
    was no denial of natural justice in the manner in which the Italian court
    proceedings unfolded. The basis for this submission appears to be that the
    appellant was not put on notice that criminal allegations of fraud were being
    made against him. He alleges that, because in Canada fraud has to be pleaded
    specifically, the failure to do so specifically in Italy was a denial of
    natural justice.

[15]

We
    do not accept this submission. In our view, the motion judge was correct to
    conclude that the respondents actions did not deny the appellant the
    opportunity to participate in the Italian litigation had he wished to do so.
    While the word fraud was not used in the writ, the material facts going to the
    appellants alleged conduct were clear in the writ. Further, the correspondence
    from King to the Italian Trustee in Bankruptcy that the appellant contends
    ought to have been submitted to the Italian court by the respondent contains
    the appellants response to the fraud allegations, demonstrating full well that
    he knew what allegations he was facing. The reality is that the Italian court
    proceeding was not an
ex parte
hearing; it proceeded as a default
    proceeding only because the appellant did not choose to appear in his own
    defence.

[16]

Finally,
    the appellant submits that the motion judge erred in concluding that there was
    no fraud perpetrated by the respondent (by failing to disclose relevant
    information) on the Italian court.

[17]

We
    do not accept this submission. After a careful and extended analysis, the
    motion judge concluded that the Trustee and Giardina [the Trustees counsel]
    did not mislead the court. Nor can I conclude that either of the Trustee or
    Giardina abused their positions as officers of the court. We agree with this
    conclusion.

[18]

The
    appeal is dismissed. The respondent is entitled to its costs of the appeal
    fixed at $20,000, inclusive of disbursements and applicable taxes.

Released: October 1, 2012 (J.C.M.)

J.C. MacPherson J.A.

Robert P. Armstrong J.A.

R.A. Blair J.A.


