



COURT OF APPEAL FOR ONTARIO

CITATION: Grayson Consulting Inc. v. Lloyd, 2019 ONCA 79

DATE: 20190206

DOCKET: C65320

Juriansz, Brown and Roberts JJ.A.

BETWEEN

Grayson Consulting Inc.

Plaintiff (Appellant)

and

Clifford Lloyd

Defendant (Respondent)

Gregory Sidlofsky, for the appellant

Marc Munro, for the respondent

Heard: December 7, 2018

On appeal from the judgment of Justice James F. Diamond
    of the Superior Court of Justice, dated April 3, 2018, with reasons reported at
2018 ONSC 2020
.

Brown J.A.:



I.

OVERVIEW

[1]

The appellant, Grayson Consulting, Inc. (Grayson), obtained an August
    20, 2014 default judgment in the amount of US $451,435,577.37 against the
    respondent, Clifford Lloyd, in the United States District Court for the
    District of South Carolina (the SC Default Judgment).

[2]

On December 8, 2017, Grayson commenced this Ontario action to recognize
    and enforce the SC Default Judgment. On December 20, 2017, Grayson secured an
ex
    parte

Mareva
injunction against Mr. Lloyd.

[3]

By order dated April 3, 2018, the motion judge set aside the
Mareva
injunction, holding that the action to enforce the SC Default Judgment was
    commenced outside the time period prescribed by the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sched. B.

[4]

Grayson appeals and seeks orders restoring the
Mareva
injunction and declaring that its action is not statute-barred.

[5]

For the reasons set out below, I would dismiss the appeal. I see no
    error in the motion judges conclusion that Graysons action is statute-barred
    and, on that basis, the
Mareva
injunction should be set aside.

II.

JURISDICTION

[6]

Mr. Lloyd raises a preliminary issue as to whether this appeal more
    properly lies to the Divisional Court because the order setting aside the
Mareva
injunction is interlocutory in nature. However, Mr. Lloyd does not press this
    argument with vigour, noting that the law on this issue is unclear. Given that in
    the course of setting aside the
Mareva
injunction the motion judge found
    that the enforcement action was statute-barred, thereby giving effect to a
    substantive defence that would end the action, I conclude that this court has
    the jurisdiction to consider the appeal.

III.

THE SOUTH CAROLINA ACTION

[7]

In August 2007, the bankruptcy trustee of Derivium Capital, LLC,
    commenced action No. 07-CV-02992-DCN in the United States District Court for
    the District of South Carolina (the District Court), against Mr. Lloyd and
    others, alleging that the defendants had defrauded numerous investors in a
    Ponzi or pyramid investment scheme (the 2992 Action). The Complaint alleged
    that Derivium had been used as one of the vehicles by which to perpetrate the
    fraud. At one point, Mr. Lloyd had acted as corporate counsel for Derivium.

[8]

The action against Mr. Lloyd and his co-defendants was one of several
    commenced relating to the failed Derivium investment scheme.

[9]

In June 2008, Mr. Lloyd, a resident of Ontario, filed an answer in the 2992
    Action. In November 2012, Grayson was substituted as plaintiff for the
    bankruptcy trustee.

[10]

Mr.
    Lloyd moved to dismiss the action for failure to state a claim against him. By
    order dated September 9, 2013, the District Court dismissed some of the claims
    pleaded against Mr. Lloyd, but allowed others to continue. At that point, Mr.
    Lloyd stopped participating in the proceeding.

[11]

A
    trial was held in two of the Derivium-related actions: the 2992 Action in which
    Mr. Lloyd and Tsuei Consultants, LLC were two of many defendants, and action
    No. 07-CV-0593-DCN in which Nigel Wood was a defendant (the 593 Action).
    Following the trial, in May 2014 Grayson and other plaintiffs in the 2992 and
    593 Actions moved for judgment as a matter of law against Mr. Lloyd and two
    other defendants  Tsuei Consultants and Wood  on the basis that each of the
    defendants had failed to comply with court orders and appear at the trial. In
    the alternative, Grayson argued that default judgment should issue against Mr.
    Lloyd.

[12]

That
    motion was joined with one in a related action, the Sandifer Action, in which
    default judgment was sought against Metarizon LLC, a company of which Jonathan Sandifer
    was the principal.

[13]

On
    August 20, 2014, the District Court released an order dealing with the motions
    in the three actions. In his order, the District Court judge observed that the
    Grayson plaintiffs had had ample time to pursue their claims against the few
    remaining defendants, including Mr. Lloyd, but their motions did not address
    all outstanding claims in the 2992, 593, and Sandifer Actions. He stated: The
    court interprets plaintiffs silence as voluntary dismissal and will dismiss
    any claims not discussed in the three pending motions.

[14]

The
    District Court judge granted: (i) default judgment against Mr. Lloyd and Tsuei
    Consultants in the 2992 Action; (ii) default judgment and entry of judgment
    against Wood in the 593 Action; and (iii) default judgment against Metarizon in
    the 593 and Sandifer Actions. As noted, the default judgment granted against Mr.
    Lloyd was for the amount of US $451,435,577.37. Significantly, the District
    Court judge also dismissed any and all remaining claims against all other
    defendants that have not otherwise been addressed by this order in the 2992,
    593 and Sandifer Actions, save for those against Mr. Sandifer, which had been
    stayed by reason of his bankruptcy.

[15]

No
    appeal was taken from the SC Default Judgment against Mr. Lloyd. Appeals were
    taken to the United States Court of Appeals for the Fourth Circuit (the Appeal
    Court) against some of the orders made in respect of other defendants in the
    three actions. I will consider the effect of those appeals on the SC Default
    Judgment against Mr. Lloyd in more detail later in these reasons.

[16]

On
    March 7, 2016 the Appeal Court rendered judgment on the consolidated appeals in
    the 2992, 593 and Sandifer Actions. It then issued a March 29, 2016 Mandate in
    the consolidated appeals stating that on that date its March 7 judgment took
    effect.

IV.     THE ONTARIO ENFORCEMENT ACTION

The
ex parte Mareva
injunction

[17]

Alan
    Grayson, the President of Grayson, deposed that after the Mandate was issued he
    took steps to determine whether Mr. Lloyd had any assets. He contended that it
    was not until October 2017 that he discovered Mr. Lloyd had assets in Ontario,
    notwithstanding that Mr. Lloyd had lived in Ontario during the entirety of the
    South Carolina proceeding.

[18]

On
    December 8, 2017, Grayson commenced this action to recognize and enforce the SC
    Default Judgment. Dietrich J. granted an
ex parte Mareva
injunction
    against Mr. Lloyd on December 20, 2017. On the return of the motion on January
    2, 2018, Mr. Lloyd raised the issue that Graysons claim was statute-barred.
    Dietrich J. extended the
Mareva
injunction until the hearing of Mr.
    Lloyds motion relating to the limitation period issue.

[19]

On
    January 30, 2018, Mr. Lloyd filed a statement of defence asserting numerous
    defences to the enforcement action, including that the claim was time-barred.

[20]

The
    motion judge adjourned the motion to permit both parties to file expert
    evidence on issues relating to the procedures in the District and Appeal
    Courts.

The experts

[21]

Both
    parties filed evidence from practising South Carolina attorneys. Grayson filed
    an affidavit from Mr. Joseph C. Wilson IV; Mr. Lloyd filed one from Mr. Brian
    C. Duffy.

[22]

Mr.
    Wilson and Mr. Duffy did not file signed Form 53 acknowledgements of experts
    duty. As the motion judge observed, at para. 22, [n]either Wilson nor Duffy
    appear to be impartial, having been previously retained to act at various
    stages in the SC action and US Court of Appeal proceedings. Mr. Wilson had
    represented Grayson in the Derivium-related litigation; Mr. Duffy had acted for
    some of the defendants on the consolidated appeals to the Appeal Court. However,
    Mr. Duffy did state that his opinion had been prepared for use pursuant to Rule
    4.1 of the
Rules of Civil Procedure
, thereby recognizing the duties
    imposed by the
Rules
on experts.

[23]

The
    lack of independence of the two attorney experts from the parties or the underlying
    litigation could well have affected the admissibility of their evidence:
White
    Burgess Langille Inman v. Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2
    S.C.R. 182, at paras. 45 and 47; Janet Walker,
Canadian Conflict of Laws,
loose-leaf
    (Rel. 2017), 6th ed. (Toronto: LexisNexis, 2005), at §7.3. However, neither Mr.
    Wilson nor Mr. Duffy was cross-examined on their respective affidavits and
    neither party contested the admissibility of their evidence below or before
    this court. The motion judge evidently regarded the evidence as sufficiently
    reliable for consideration.

The reasons of the motion judge

[24]

In
    setting aside the
Mareva
injunction, the motion judge held that the
    action was commenced outside the two-year time period prescribed by the
Limitations
    Act, 2002
. He reached that conclusion for two reasons.

[25]

First,
    the motion judge held that it was legally appropriate for Grayson to commence
    this proceeding seeking enforcement of the SC judgment after the time to appeal
    the SC judgment in South Carolina had expired (i.e. 30 days after August 22,
    2014) but the proceeding was not commenced until over three years after that
    date: at para. 33.

[26]

Second,
    the motion judge rejected Graysons submission that the limitation period to
    enforce the SC Default Judgment did not begin to run until he actually knew Mr.
    Lloyd had exigible assets in Ontario. The motion judge stated, at para. 37:

[O]nce the SC judgment became final (i.e. 30 days after August
    22, 2014), Grayson was under an obligation to conduct itself with due diligence
    with respect to seeking enforcement opportunities against Lloyd. While
    this does not mean that Grayson had an obligation to conduct a worldwide search
    of possible assets, it was already in possession of enough information about
    Lloyds real and substantial connection to Ontario that it ought to have taken
    investigatory steps when the SC judgment became final, or shortly thereafter.


IV.

ISSUES ON APPEAL

[27]

Grayson
    submits the motion judge made two errors in setting aside the
Mareva
injunction. First, the motion judge incorrectly held that the limitation period
    for an action to enforce the SC Default Judgment began to run 30 days after the
    date of its entry, August 22, 2014, instead of from the date of the Appeal
    Courts March 29, 2016 Mandate in the consolidated appeals. Second, the motion
    judge erred in holding that Grayson ought to have known that Mr. Lloyd had
    exigible assets in Ontario as at the date of the SC Default Judgment.


V.

FIRST GROUND OF APPEAL: DID THE MOTION JUDGE ERR IN HOLDING THAT TIME BEGAN
    TO RUN 30 DAYS AFTER THE DATE OF OF THE SC DEFAULT JUDGMENT?

A.      The governing legal principles

[28]

In
Independence Plaza 1 Associates, L.L.C. v. Figliolini
, 2017 ONCA 44, 136
    O.R. (3d) 202, this court held, at para. 3, that: (i) the basic two-year
    limitation period in s. 4 of the
Limitations Act, 2002
applies to a
    proceeding on a foreign judgment; and (ii) the limitation period begins to run,
    at the earliest, when the time to appeal the foreign judgment has expired or,
    if an appeal is taken, the date of the appeal decision, unless the claim on the
    foreign judgment was not discovered within the meaning of s. 5 of the
Limitations
    Act, 2002
until a date later than the appeal decision.

[29]

When
    the time to appeal a foreign judgment expires is a matter of the law of the
    foreign jurisdiction. In Ontario, foreign law is treated like a fact, the proof
    of which generally requires opinion evidence from a properly qualified expert:
    Walker, at §7.1 and §7.3. The appropriate standard of appellate review on
    questions of foreign law is correctness:
General Motors Acceptance Corporation
    of Canada, Limited v. Town & Country Chrysler Limited
, 2007 ONCA 904, 88
    O.R. (3d) 666, at para. 35.

B.      Application of the governing legal principles

The expiration of the appeal period under the
Federal Rules of
    Appellate Procedure

[30]

In
    his opinion, Mr. Duffy  the expert proffered by Mr. Lloyd  expressly
    considered the operation of both the United States
Federal Rules of Civil
    Procedure
and
Federal Rules of Appellate Procedure
. He opined
    that the SC Default Judgment was final and appealable on August 20, 2014, and
    no party appealed that judgment within the thirty-day timeframe.

[31]

By
    contrast, Mr. Wilson, the expert relied upon by Grayson, did not express an
    opinion based on the
Federal Rules of Civil Procedure
and
Federal
    Rules of Appellate Procedure
on the issue framed by this court in
Figliolini
- i.e. when did the time to appeal the foreign judgment expire? Mr. Wilson did not
    opine on when the time for filing a notice of appeal of the SC Default Judgment
    expired under Rule 4 of the
Federal Rules of Appellate Procedure
.

[32]

Instead,
    Mr. Wilson sought to re-cast the
Figliolini
test as an inquiry into
    when all proceedings in the foreign jurisdiction had run their course.
    Although no party appealed the SC Default Judgment against Mr. Lloyd, Mr.
    Wilson contended that the existence of the consolidated appeals in respect of
    other defendants in the Derivium litigation meant that all proceedings in the
    foreign jurisdiction had not run their course until the Appeal Court released
    its Mandate on March 29, 2016. Only then did time begin to run in respect of
    any action to enforce the SC Default Judgment against Mr. Lloyd.

[33]

Mr.
    Wilsons opinion mischaracterizes the test in
Figliolini
, which this
    court set out clearly at paras. 3(b) and 77 of its decision:

The limitation period begins to run, at the
    earliest, when the time to appeal the foreign judgment has expired or, if an
    appeal is taken, the date of the appeal decision. The time may be longer if the
    claim was not discovered within the meaning of
s. 5
of the
Limitations Act, 2002
, until a date later than the appeal decision.



In the usual case, it will not be legally
    appropriate to commence a legal proceeding on a foreign judgment in Ontario
    until the time to appeal the judgment in the foreign jurisdiction has expired
    or all appeal remedies have been exhausted. The foreign appeal process has the
    potential to resolve the dispute between the parties. If the judgment is
    overturned, the debt obligation underlying the judgment creditors proceeding
    on the foreign judgment disappears.

[34]

At
    para. 80 of
Figliolini
, this court noted that 
this
    approach avoids the risk of multiplicity of proceedings by not requiring the
    judgment creditor to commence a proceeding on a foreign judgment in Ontario
    before all proceedings in the foreign jurisdiction have run their course.
    However, the reference to whether proceedings have run their course was made
    in respect of the status of the foreign proceedings as between the foreign
    judgment creditor and the foreign judgment debtor, not as between the foreign
    judgment creditor and any other party to the foreign litigation.

[35]

In the present case, there was no dispute that neither Grayson nor Mr.
    Lloyd appealed the SC Default Judgment within the 30-day appeal period available
    to them under Rule 4 of the
Federal Rules of Appellate Procedure
.
    In the ordinary course, time under the
Limitations Act, 2002
would
    have started to run upon the expiration of the 30-day appeal period in
    accordance with the principles in
Figliolini
.

The effect of Rule 54(b) of the
Federal Rules of Civil Procedure
on the expiration of the appeal period

[36]

However, Grayson submits that the ordinary course application of the
Figliolini
principles must be modified by taking into account the operation of
    Rule 54(b) of the
Federal Rules of Civil Procedure
, which states:

Judgment on Multiple Claims or Involving Multiple
    Parties.
When an action presents more than one claim for
    relief--whether as a claim, counterclaim, crossclaim, or third-party claim--or
    when multiple parties are involved, the court may direct entry of a final
    judgment as to one or more, but fewer than all, claims or parties only if the
    court expressly determines that there is no just reason for delay.
Otherwise, any order or other decision, however designated,
    that adjudicates fewer than all the claims or the rights and liabilities of
    fewer than all the parties does not end the action as to any of the claims or
    parties and may be revised at any time before the entry of a judgment
    adjudicating all the claims and all the parties' rights and liabilities
.
    [Emphasis added.]

[37]

In
    their submissions, Grayson and Lloyd advance different interpretations of Rule
    54(b) and its effect on the running of the appeal period for the SC Default
    Judgment. However, neither party filed American case law that described the
    origins and purpose of Rule 54(b).

[38]

When
    reviewing a lower courts findings of fact regarding foreign law, this court
    may not reinterpret the law. However, we can consider the evidence upon
    which the expert opinion is based to determine if there is a reasonable
    relationship between the evidence upon which the opinion is based and the
    opinion itself:
Lind v. Sweden
(1987), 23 O.A.C. 62 (C.A.), at para.
    36. In so doing, this court may examine for itself the legislation and
    precedents referred to by the experts:
Allen v. Hay
, 64 S.C.R. 76, at
    p. 81.

[39]

Applying
    the approach described in the
Lind
and
Allen
cases, when one
    works through the cases referred to by Mr. Duffy in his expert report, together
    with the cases they in turn cite, one is led to the seminal decision of the
    United States Supreme Court in
Sears, Roebuck and Co. v. Mackey
(1956),
    351 U.S. 427 that explains the origins and purpose of Rule 54(b).

[40]

Under
    U.S. federal law a federal court of appeals has jurisdiction over appeals from
    all final decisions of the district courts of the United States: 28 U.S.C.
    §1291.
[1]
Before the adoption of the
Federal Rules
    of Civil Procedure
in 1939, United States federal courts applied the
    general rule that a judgment on some, but not all, of the claims in an action
    was not a final decision of the whole case and there was no authority for
    treating anything less than the whole case as a judicial unit for purposes of
    appeal:
Sears, Roebuck,
at pp. 431-2.

[41]

That
    changed with the enactment of the
Federal Rules of Civil Procedure
in
    1939. As described by the United States Supreme Court in
Sears, Roebuck
at p. 432:

[T]here came an increased opportunity for the liberal joinder
    of claims in multiple claims actions. This, in turn, demonstrated a need for
    relaxing the restrictions upon what should be treated as a judicial unit for
    purposes of appellate jurisdiction. Sound judicial administration did not
    require relaxation of the standard of finality in the disposition of the
    individual adjudicated claims for the purpose of their appealability. It did,
    however, demonstrate that, at least in multiple claims actions, some final
    decisions, on less than all of the claims, should be appealable without waiting
    for a final decision on all of the claims.

[42]

To
    meet this need, Rule 54(b) was promulgated in 1939, with amendments subsequently
    made to it. The purpose of the rule was described in
Sears, Roebuck
,
    at pp. 435-7:

I[t] does not relax the finality required of each decision, as
    an individual claim, to render it appealable, but it does provide a practical
    means of permitting an appeal to be taken from one or more final decisions on
    individual claims, in multiple claims actions, without waiting for final
    decisions to be rendered on all the claims in the case.
The
    amended rule does not apply to a single claim action nor to a multiple claims
    action in which all of the claims have been finally decided. It is limited
    expressly to multiple claims actions in which one or more but less than all
    of the multiple claims have been finally decided and are found otherwise to be
    ready for appeal
.

To meet the demonstrated need for flexibility, the District
    Court is used as a dispatcher. It is permitted to determine, in the first
    instance, the appropriate time when each final decision upon one or more but
    less than all of the claims in a multiple claims action is ready for appeal.
    This arrangement already has lent welcome certainty to the appellate procedure.
    Its negative effect has met with uniform approval. The effect so referred to
    is the rule's specific requirement that for one or more but less than all
    multiple claims to become appealable, the District Court must make both an
    express determination that there is no just reason for delay and an express
    direction for the entry of judgment. A party adversely affected by a final
    decision thus knows that his time for appeal will not run against him until
    this certification has been made.



The District Court cannot, in the exercise of its discretion,
    treat as final that which is not final within the meaning of s. 1291. But
    the District Court may, by the exercise of its discretion in the interest of
    sound judicial administration, release for appeal final decisions upon one or
    more, but less than all, claims in multiple claims actions. [Emphasis added.]

[43]

Grayson argues that since appeals by other parties in the three grouped
    Derivium actions proceeded after the issuance of the SC Default Judgment
    against Mr. Lloyd and Mr. Lloyds name was included in the appeals style of
    cause, the SC Default Judgment adjudicate[d] few[er] than all the claims or
    the rights and liabilities of fewer than all the parties. As a result,
    according to Grayson, the SC Default Judgment could be revised at any time
    before the entry of a judgment adjudicating all the claims and all the parties
    rights and liabilities pursuant to Rule 54(b). It follows, Grayson submits,
    that Mr. Lloyd could have re-opened the SC Default Judgment up until the Appeal
    Court issued its March 2016 Mandate in respect of the consolidated appeals, even
    though Mr. Lloyd did not participate in the consolidated appeals.

[44]

The motion judge rejected Graysons argument stating, at paras. 29-31:

In my view, Graysons position is incorrect. Graysons position
     that Lloyd could have moved to re-open the SC action as against him had the
    result of Graysons consolidated appeals been of benefit to Lloyds
    jurisdiction argument - runs contrary to the holdings in
Figliolini
. The
    time for Lloyd to appeal the SC judgment in South Carolina expired 30 days
    after the date the SC judgment was released.
It cannot
    lie in Graysons mouth to state that the SC action had yet to run its course
    because all appeal remedies had yet to be exhausted when neither Grayson nor
    Lloyd sought any relief against each other within the consolidated appeals.


In the US Court of Appeal caption, Grayson is listed as a
    Plaintiff  Appellant, Vision and Total are listed as Defendants 
    Appellees (another word for respondent), and Lloyd is listed as a Defendant.
    While Lloyd may have been listed as a party to the appeal in the caption, he is
    not listed as a respondent to Graysons appeal.

Lloyd never appealed the SC judgment, and Grayson never
    appealed the SC judgment against Lloyd. As such, no relief against each other
    was available to either Grayson or Lloyd in the consolidated appeal. The SC
    judgment against Lloyd could not have been overturned by the US Court of Appeal
    since its jurisdiction to do so was never engaged by Grayson and/or Lloyd
    themselves. [Emphasis added.]

[45]

I
    see no error in the motion judges analysis that warrants appellate
    intervention. I reach that conclusion for two reasons.

[46]

First,
    the expert evidence filed by Grayson does not support its submission that as Mr.
    Lloyd could have reopened the SC Default Judgment at any time up until the
    Appeal Courts Mandate, the time to appeal the SC Default Judgment did not
    expire until the date of the Mandate.

[47]

Rule
    4(a)(1)(A) of the
Federal Rules of Appellate Procedure
requires that a
    notice of appeal must be filed with the district clerk within 30 days after
    entry of the judgment or order appealed from.
[2]
The SC Default Judgment was entered on
    August 20, 2014. Although Mr. Wilson referred to Rule 54(b) in his affidavit,
    he offered no opinion about the effect of that rule on when the 30-day appeal
    period under the
Federal Rules of Appellate Procedure
began to run in
    respect of the SC Default Judgment. Indeed, his opinion is devoid of any
    consideration of the jurisprudence surrounding the effect of Rule 54(b) on the
    SC Default Judgment, including the effect on any appeal period for the SC
    Default Judgment under the
Federal Rules of Appellate Procedure
in
    light of appeals taken from other orders in the consolidated actions.

[48]

Second,
    by contrast Mr. Duffy dealt at some length with the Rule 54(b) jurisprudence
    and its potential application to the South Carolina proceedings. He opined that
    the direction of entry of a final judgment referred to in the rule was not
    required in respect of the SC Default Judgment issued against Mr. Lloyd in the
    2992 Action because:

[A]s of August 20, 2014, the Clerk and/or District Court had
    entered final judgments in the form of dismissals, jury verdicts, or default
    judgments with respect to all of the defendants in the -2992 Case. As of August
    20, 2014, the only remaining, pending claims were against Defendant Sandifer,
    and he was not a party to the -2992 Case.



Consequently  the August 20, 2014 Order rendered the August
    20, 2014 judgments final  even though the stayed claims against
Sandifer
in the other, consolidated matter had not been
    adjudicated  because the Order adjudicated all remaining claims in the -2992
    Case and the finality of the judgments would not affect Mr. Sandifers rights
    in the bankruptcy proceeding. Thus, all of the interests underlying the
    finality rule and Appellant Graysons actions, as well as common sense, dictate
    that the judgments were in fact final and appealable as of August 20, 2014.

[49]

This
    part of Mr. Duffys opinion finds support in the Appeal Courts March 29, 2016
    Mandate, which stated that its judgment entered March 7, 2016 (the March 7
    Appeal Judgment) took effect on March 29, 2016. The March 7 Appeal Judgment
    disclosed that Grayson and other plaintiffs had appealed two rulings of the
    District Court: (i) its dismissal of claims against Vision International People
    Group, P.L., for want of jurisdiction; and (ii) its dismissal of claims against
    Randolph Anderson, Patrick Kelley and Total Eclipse International Ltd. on the
    basis that they disclosed no cause of action recognized by South Carolina law.
    Vision International and Total Eclipse had been named as defendants in the 2992
    Action and another proceeding. Anderson and Kelley were not defendants in the 2992
    Action.

[50]

The
    March 7 Appeal Judgment dismissed both appeals, affirming the District Courts
    judgments in respect of Vision International, Total Eclipse, Anderson, and
    Kelley. The Mandate subsequently issued by the Appeal Court on March 29, 2016
    indicated that it was in respect only of the appellees, Vision International,
    Total Eclipse, Anderson, and Kelley, and stated: The judgment of this court,
    entered March 7, 2016, takes effect today.

[51]

Significantly,
    the March 7 Appeal Judgment did not purport to deal with any other judgment
    issued by the District Court. Specifically, it did not affect the SC Default
    Judgment. To state the obvious, that is understandable because neither Grayson
    nor Mr. Lloyd appealed the SC Default Judgment.

[52]

Given
    the state of the record, I see no error in the motion judges conclusion, at
    para. 29, that [i]t cannot lie in Graysons mouth to state that the SC action
    had yet to run its course because all appeal remedies had yet to be exhausted
    when neither Grayson nor Lloyd sought any relief against each other within the
    consolidated appeals. The District Courts August 20, 2014 order disposed
    of all remaining claims in the 2992 Action, in part by granting the SC Default
    Judgment. Under the
Federal Rules of Appellate Procedure
, the time to
    appeal the SC Default Judgment expired 30 days after the judgments entry on
    August 20, 2014. Grayson failed to demonstrate that Rule 54(b) of the
Federal
    Rules of Civil Procedure
altered that appeal period. Consequently, the motion
    judge correctly concluded that [i]t was therefore legally appropriate for
    Grayson to commence this proceeding seeking enforcement of the SC judgment
    after the time to appeal the SC judgment in South Carolina had expired (i.e. 30
    days after August 22, 2014): at para. 33.

[53]

Grayson
    did not commence this enforcement action until December 8, 2017, more than two
    years after the expiration of the appeal period for the SC Default Judgment. As
    a result, I see no error in the motion judge setting aside the
Mareva
injunction on the basis that Grayson had failed to demonstrate a strong
prima
    facie
case that it had commenced the action less than two years after the
    appeal period expired:
Aetna Financial Services Ltd. v. Feigelman
,
    [1985] 1 S.C.R. 2, at p. 27.

[54]

Accordingly,
    I would not give effect to this ground of appeal.


VI.

SECOND GROUND OF APPEAL: DID THE MOTION JUDGE ERR IN FAILING TO FIND
    THAT TIME DID NOT BEGIN TO RUN UNTIL GRAYSON HAD ACTUAL KNOWLEDGE THAT MR.
    LLOYD HAD ASSETS IN ONTARIO?

[55]

Grayson
    submits the motion judge erred in rejecting its argument that the limitation
    period ought not to commence until such time as it had actual knowledge that Mr.
    Lloyd had exigible assets within Ontario.

[56]

I
    do not agree. While in
Figliolini
this court observed, at para. 82,
    that [i]n a particular case, a claim based on a foreign judgment may not be
    discovered under s. 5 of the
Limitations Act, 2002
until such time as
    the judgment creditor knew or ought to have known that the judgment debtor had
    exigible assets in Ontario and could be served with process, this court went
    on to emphasize that [a]s s. 5(1)(b) makes clear, the discoverability
    assessment, including the appropriateness criterion, must take account of the
    factual context and the plaintiffs actual circumstances.

[57]

Section
    5(1) of the
Limitations Act, 2002
states that a claim is discovered on
    the earlier of:

(i) the s. 5(1)(a) date 
    i.e., the day on which the person with the claim first knew that the injury,
    loss or damage had occurred, was caused by an act or omission of the defendant,
    and a proceeding would be an appropriate means to seek to remedy it; and

(ii) the s. 5(1)(b) date 
    i.e., the day on which a reasonable person with the abilities and in the
    circumstances of the person with the claim first ought to have known of the
    matters referred to in [s. 5(1)(a)].

[58]

In
    the present case, the reasons of the motion judge disclose he concluded that
    the day on which a reasonable person ought to have known of the matters
    referred to in s. 5(1)(a) was the date of entry of the SC Default Judgment. The
    motion judge held that once the SC judgment became final (i.e. 30 days after
    August 22, 2014), Grayson was under an obligation to conduct itself with due
    diligence with respect to seeking enforcement opportunities against Lloyd and
    it was already in possession of enough information about Lloyds real and
    substantial connection to Ontario that it ought to have taken investigatory
    steps when the SC judgment became final, or shortly thereafter.

[59]

That
    conclusion was amply supported by the evidence. The record was clear that
    throughout the South Carolina litigation, Grayson knew that Mr. Lloyd was a
    resident of Ontario practising law in Hamilton: at para. 36. In those
    circumstances, one would expect a reasonable judgment creditor to take prompt steps
    to enforce a foreign judgment in the jurisdiction where the judgment debtor resides
    when the time to appeal the foreign judgment expires or, if an appeal is taken,
    when the appeal is decided. In the circumstances, when the 30-day period to appeal
    the SC Default Judgment expired, a proceeding to enforce the judgment in
    Ontario was an appropriate means to remedy Graysons loss. Accordingly, I
    would not give effect to this ground of appeal.

VII.    DISPOSITION

[60]

For
    the reasons set out above, I would dismiss the appeal.

[61]

I
    would award Mr. Lloyd his costs of the appeal fixed on a partial indemnity
    basis at $16,000, inclusive of disbursements and applicable taxes.

Released: DB Feb 6, 2019

David Brown J.A.
I agree. R.G. Juriansz J.A.

I agree. L.B. Roberts J.A.





[1]

Expert Report of Mr. Duffy, Exhibit Book, Vol. 2, p. 435.



[2]

Ibid.


