



COURT OF APPEAL FOR ONTARIO

CITATION: Goguen v. Baptiste, 2022 ONCA 284

DATE: 20220408

DOCKET: C69579

MacPherson, Paciocco and George JJ.A.

BETWEEN

Michael L. Goguen

Plaintiff (Respondent)

and

Amber Laurel Baptiste and Every Girl Counts LLC

Defendants (Appellants)

Symon Zucker and Nancy J. Tourgis, for the appellants

Monique Jilesen and Sahar Talebi, for the respondent

Heard: April 4, 2022

On appeal from the
    orders of Justice Cory A. Gilmore of the Superior Court of Justice, dated May
    17 and June 25, 2021.

REASONS FOR DECISION

[1]

The appellants Amber Baptiste and Every Girl Counts LLC appeal from two
    orders of Gilmore J. of the Superior Court of Justice. The result of the first
    order dated May 17, 2021 was to grant summary judgment to the respondent
    Michael Goguen that recognized a judgment in his favour by a California court.
    The result of the second order dated June 25, 2021 was to allow the respondent
    to enforce the California judgment and seize money (more than $7 million)
    located in Alberta, not Ontario.

[2]

In its appeal material, including factum, the appellants advance two
    grounds of appeal: (1) the motion judge should have stayed the respondents
    motion for default judgment pending the hearing of an appeal that they had
    launched relating to the California judgment; and (2) the motion judge erred by
    making an order relating to the appellant Baptistes funds in a CIBC bank
    account in Alberta.

[3]

By the time the appeal was argued in this court, the California Court of
    Appeal had dismissed the appellants appeal of the California decision on the
    basis of the appellants failure to file a brief after notice was given under
    the
California Rules of the Court
(California Court of Appeal Order
    dated August 10, 2021). Accordingly, at the appeal hearing in this court, the
    appellants abandoned their first ground of appeal and proceeded only with their
    ground of appeal relating to the jurisdiction of the Ontario Superior Court to
    make an order relating to Baptistes funds in a CIBC account in Alberta.

[4]

The appellants position is that they are not residents of Ontario, have
    no connection with Ontario and, importantly, have no assets in Ontario. They
    admit that Baptiste has assets in Alberta (the CIBC bank account) and say that
    any enforcement of the now final California order must take place in Alberta.

[5]

We do not accept this submission, essentially for two reasons, one
    factual and the other legal.

[6]

The factual reason is that, at the time Goguen brought his application
    for a
Mareva
injunction in the Superior Court, which was granted by
    Conway J. on September 15, 2020, there was evidence that Baptiste had assets in
    Ontario. In a Wells Fargo wire transfer from California, the recipient is
    identified as Amber Baptiste, a resident of California, who has an account at
    the CIBC on Bay St. in Toronto. The amount of the transfer was $9,700,000. In
    addition, the respondent had no knowledge of whether Baptiste had any assets in
    Canada outside of Ontario.

[7]

The second reason for not accepting the appellants submission is that,
    in our view, the motion judge was correct to conclude, in her enforcement
    reasons and draft order, that the Ontario court had
in personam
jurisdiction
    over both Baptiste and CIBC  Baptiste because of the factual background that
    the motion judge outlined in her recognition endorsement and CIBC because of
    its head office in Ontario. Against this backdrop, it was irrelevant that,
    apparently, Baptiste had transferred some or all of her funds to a CIBC branch
    in Alberta.

[8]

In our view, the motion judge identified and correctly applied
Chevron
    Corp. v. Yaiguaje
, 2015 SCC 42, in reaching her decision. In
Chevron
,
    Gascon J. said at paras. 56, 57 and 69:

Requiring assets to be present in the jurisdiction when
    recognition and enforcement proceedings are instituted is also not conducive to
    order or fairness. For one thing, assets such as  bank deposits may be in one
    jurisdiction one day, and in another the next.



In todays globalized world and electronic age, to require that
    a judgment creditor wait until the foreign debtor is present or has assets in
    the province before a court can find that it has jurisdiction in recognition
    and enforcement proceedings would be to turn a blind eye to current economic
    reality.



Facilitating comity and reciprocity, two of the backbones of
    private international law, calls for assistance, not barriers.

[9]

In our view, the motion judges reasoning and decision are closely
    aligned with the
Chevron
framework. She concluded:

The Defendants insistence on registration of the judgment in
    Alberta would impose a needless administrative burden on the Plaintiff given
    the jurisdiction this Court has over the Defendant and the Bank, the notice
    given and the consent of the institution (whose head office is in Ontario).

[10]

The appeal is dismissed. The respondent is entitled to its costs of the
    appeal fixed at $10,000, inclusive of disbursements and HST.

J.C. MacPherson J.A.

David M. Paciocco
    J.A.

J. George J.A.


