Canada (National Revenue) v Glazer, 2011 ABQB 559

Court of Queen ’ s Bench of Alberta Citation: Canada (National Revenue) v Glazer, 2011 ABQB 559 Date: 20110915 Docket: 1003 13624 Registry: Edmonton Between: The Attorney General of Canada bringing the action on behalf of Her Majesty the Queen In Right of Canada as Represented by the Minister of National Revenue Respondent/Plaintiff - and - Lawrence Franklin Glazer Applicant/Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ I.

Introduction [ 1 ] Lawrence Franklin Glazer (the “Appellant”) appeals Master Wacowich’s Decision of March 30, 2011 to dismiss his motion to set aside the ex-parte registration in Alberta of an August 13, 2004 British Columbia Supreme Court judgment against him pursuant to the Reciprocal Enforcement of Judgments Act , R.S.A. 2000, c. R-6 ( REJA ).

II. Facts [ 2 ] A brief

summary of the facts is as follows: 1. On August 17, 1993, a consent order was entered against the Appellant in favour of his trustee, Coopers Lybrand Limited, for the sum of $15,000.00 as a condition of his absolute discharge from bankruptcy (the “Consent Order”). 2. At some point, Todd McMahon Inc. became the trustee and contacted the preferred creditors in writing on January 10, 2001, indicating that they were seeking discharge. McMahon inquired if there was an interest in taking up the enforcement of the Consent Order. The Respondent, a creditor, replied affirmatively. 3.

On May 27, 2003, an Order Authorizing Creditor to Take Proceedings was obtained by the Respondent’s agent (the “s. 38 Order”). 4. On July 7, 2003, a Writ of Summons and Statement of Claim was filed in the Supreme Court of British Columbia for the money due on the Consent Order. A copy was personally served on the Appellant in Edmonton on June 15, 2004. 5. Default Judgment was granted against the Appellant on August 13, 2004 (the “BC Judgment”). 6. On February 22, 2005, the Appellant applied to have the BC Judgment set aside.

In doing so the Appellant challenged the merits of the action leading to the BC Judgment but did not challenge the jurisdiction of the British Columbia Supreme Court. The motion was dismissed. 7. The Appellant appealed the dismissal of the motion to set aside the BC Judgment. On appeal, the Appellant did not raise the issue of the jurisdiction of the Supreme Court of British Columbia. This appeal was ultimately abandoned. 8. On November 17, 2008, a Statement of Claim was filed against the Appellant in the Court of Queen’s Bench of Alberta, on the BC Judgment.

On December 12, 2008, the Appellant filed a Statement of Defence and Counter Claim. A Statement of Defence to Counter Claim was filed on December 19, 2008. 9. On August 11, 2010, Master Wacowich ordered that the BC Judgment be registered in Alberta pursuant to the REJA . 10. The Appellant’s arguments before Master Wacowich were not clearly set out, but in my view the Respondent has done a good job of summarizing the issues as follows:

a) Has the Applicant shown that he did not voluntarily appear or otherwise submit to the jurisdiction of the British Columbia Supreme Court within the meaning of section 2 (6) (

b) of REJA ?

b) Has the Applicant shown that the BC Judgment was obtained through fraud within the meaning of section 2 (6) (

d) of REJA ?

c) Has the Applicant shown that the British Columbia Supreme Court acted without jurisdiction under the conflict of laws Rules of the Court?

d) Has the Applicant shown that the BC Judgment should be set aside because of how the s. 38 Order was obtained?

e) Has the Applicant shown that the BC Judgment should be set aside because of a limitation period in the Canada Student Loans Act , R.S.C. 1985, c. S-23 (the “ CSLA ”)?

f) Has the Applicant shown that the BC Judgment should be set aside because of a limitation period in the Limitation Act , R.S.B.C. 1996, c. 266 (the “ Limitations Act (BC)”)?

g) Has the Applicant shown that the BC Judgment should be set aside because of a limitation period in the Crown Liabi1ity and Proceedings Act , R.S.C. 1985, c. C50 (the “ CLPA ”)?

h) Has the Applicant shown that the BC Judgment should be set aside because of the existence of Alberta Queen’s Bench Action No.0803 16142? III. Issues [ 3 ] The issues for this appeal are: 1. What is the appropriate standard of review for this decision? 2. Are the reasons provided by Master Wacowich in dismissing the motion to set aside inadequate? 3. If the reasons of Master Wacowich are inadequate do they prevent meaningful appellate review in the context of the entire record? 4. If the reasons are inadequate and prevent meaningful appellate review, then what is the appropriate remedy? IV. Analysis 1.

What is the standard of review? [ 4 ] Rule 6.14 governs an appeal from a Master. The hearing is not de novo, but is on the record. What then is the standard of review? [ 5 ] The standard of review on an appeal from a Master was recently summarized by Macklin, J., in Janvier v. 834474 Alberta Ltd ., 2010 ABQB 800 , at paragraph 18 , as follows: 18 In

summary, the standard of review on a decision from the Master on a question of law is correctness. The standard of review for facts accepted by the Master or factual inferences drawn by the Master from the evidence is reasonableness. The finding must amount to a palpable and overriding error. The imputed error must be plainly identified and must be shown to have affected the result. On a

question of mixed fact and law, if the principle of law cannot be extricated from the question, then the standard of review is again one ofreasonableness only to be interfered with if a palpable and overriding error can be shown. If the principle of law can be extricated fromthe question, then the standard of review on the principle of law is correctness. [6] I accept Macklin, J’s

summary of the standard of review on an appeal from the Master under Rule 6.14 and I will apply theseprinciples here. 2. Are the reasons provided by Master Wacowich in dismissing the motion to set aside inadequate? [7] This is a question of law subject to the standard of correctness. [8] In the present case, the Appellant submits that the reasons provided by the Master in dismissing the motion to set aside wereinadequate. [9] The law on sufficiency of reasons was concisely summarized in Cook v. Calgary Metal Ltd., [2003] A.J.

No. 258, bySullivan J. at paras. 4 to 10 as follows: 4 The jurisprudence concerning a duty to give reasons comes primarily from criminal and administrative law. Where a person'sliberty is at stake, it is essential that both the accused and members of the public be able to ascertain the reasons for the trial judge'sdecision. Similarly, in administrative law, reasons will often be required to create a record and to demonstrate to the parties thatprocedural fairness has occurred. Criminal law and administrative law cases establish a standard of fairness.

Bearing in mind that "[e]achadjudicative setting drives its own requirements" and that "the requirement of reasons is tied to their purpose and the purpose varies withthe context" (R. v. Sheppard, [2002] S.C.J. No. 30, 2002 SCC 26 at paras. 19, 24), I look to that jurisprudence for guidance in the civillaw context. 5 The right to a fair civil trial is a fundamental principle of justice: see Sierra Club of Canada v. Canada (Minister of Finance),[2002] S.C.J. No. 42, 2002 SCC 41 at paras. 50, 70.

Just as the right to a fair trial may implicate a duty to have the trial heardcontiguously with a duty of pre-trial dis-closure, the right to a fair trial may require the giving of reasons. How does the giving of reasonsrelate to fairness? In the administrative law context, the duty of procedural fairness requires that "some form of reasons" be given "incertain circumstances". In Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 atpara. 43, L'Heureux-Dubé, for the majority, stated: [I]t is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a writtenexplanation for a decision.

The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as thiswhere the decision has important significance for the individual, when there is a statutory right of appeal, or in other circum-stances,some form of reasons should be required. 6 In Sheppard at para. 55, the Court, per Binnie J., summarized in ten non-exhaustive propositions the law concerning "the duty ofa trial judge to give reasons, viewed in the context of appellate intervention in a criminal case", including: 1 The delivery of reasoned decisions is inherent in the judge's role.

It is part of his or her accountability for the discharge of theresponsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large. 2 An accused person should not be left in doubt about why a conviction has been entered. Reasons for judgment may be importantto clarify the basis for the conviction but, on the other hand, the basis may be clear from the record. The question is whether, in all thecircumstances, the functional need to know has been met.

3 The lawyers for the parties may require reasons to assist them in considering and advising with respect to a potential appeal.

Onthe other hand, they may know all that is required to be known for that purpose on the basis of the rest of the record.... 8 The trial judge's duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., adecision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basisfor meaningful appellate review of the correctness of the trial judge's decision. 7 At para. 60, in relating the giving of reasons to trial fairness, Binnie J. qualifiedly agreed with comments made in one ofthe majority judgments of the Newfoundland Court of Appeal, (NL CA), [1999] N.J.

No. 229: Speaking of the Crown's attempt to excuse the "boilerplate" reasons by the busy nature of Judge Barnable's courtroom, Green J.A.commented: Reasons also relate to the fairness of the trial process. Particularly in a difficult case where hard choices have to be made, they mayprovide a modicum of comfort, especially to the losing party, that the process operated fairly, in the sense that the judge properlyconsidered the relevant issues, applied the appropriate principles and addressed the key points of evidence and argument submitted....

It is cold comfort, I would suggest, to an accused seeking an explanation for being convicted in a case where there was a realistic chanceof success, to be told he is not entitled to an explanation because judges are "too busy". I agree, provided it is kept in mind that in the vast majority of criminal cases both the issues and the pathway taken by the trial judge tothe result will likely be clear to all concerned.

Accountability seeks basic fairness, not perfection, and does not justify an undue shift infocus from the correctness of the result to an esoteric dissection of the words used to express the reasoning process behind it. 8 Having regard to that jurisprudence, I conclude that, in the context of a civil law appeal, failure to give reasons, in and of itself, isnot an error of law.

In Sheppard, the Court stated at para. 28: The simple underlying rule is that if, in the opinion of the appeal court the deficiencies in the reasons prevent meaningful appellatereview of the correctness of the decision then an error of law has been committed. 9 In this case, the decision of the Provincial Court Judge in its entirety consisted of the following: "Mr. Cook, you have not madeout your case. I am dismissing it." These reasons are insufficient, and the record apart from these reasons is insufficient, to allow formeaningful appellate review of the decision's correctness.

Therefore, an error of law has been committed. 10 ....In order to ful-fill its mandate, an appellate court must be able to ascertain the factual and legal basis for a decision from eitherthe reasons for decision or the record apart from those reasons, judges should consider this factor when giving final dispositions of thematters before them. [10] In the present case, the Master delivered his reasons orally on March 30, 2011. They were as follows: There is no doubt in my mind that Mr. Glazer attorned to the jurisdiction of the British Columbia court. There is no doubt in my mindthat there is no limitation issue.

This Court should respect the British Columbia decision and in my view it boils down to looking atsection 2(6) of the Reciprocal Enforcement of Judgments Act, and the Applicant has failed to meet the burden of showing that theregistration should be set aside pursuant to section 2(6).

[ 11 ] In my opinion, the Master’s reasons for judgment were insufficient as they merely set out a conclusion, without reasons for arriving at such conclusion. Nonetheless, as stated by Sullivan J., in Cook , “in the context of a civil law appeal, failure to give reasons, in and of itself, is not an error of law”, if as stated in Sheppard , at para. 28: The simple underlying rule is that if, in the opinion of the appeal court the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision then an error of law has been committed. [ 12 ] Furthermore, in Hill v.

Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41 , McLachlin C.J. had this to say at para. 101 in regards to making a determination as to the adequacy of reasons: In determining the adequacy of reasons, the reasons should be considered in the context of the record before the court. Where the record discloses all that is required to be known to permit appellate review, less detailed reasons may be acceptable. This means that less detailed reasons may be required in cases with an extensive evidentiary record, such as the current appeal.

On the other hand, reasons are particularly important when "a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue", as was the case in the decision below: Sheppard , at para. 55.

In assessing the adequacy of reasons, it must be remembered that "[t]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself": Sheppard , at para. 26. [ 13 ] Accordingly, the next question to be answered is whether the deficiencies of the Master’s reasons prevent meaningful appellate review of the decision's correctness? 3. If the reasons of Master Wacowich are inadequate do they prevent meaningful appellate review in the context of the entire record? [ 14 ] In R. v.

Gagnon , 2006 SCC 17 , the Court in reference to its previous decision in Sheppard stated at para.13: Eight years later, in Sheppard , a case in which the trial judge's reasons were virtually non-existent, this Court explained that reasons are required from a trial judge to demonstrate the basis for an acquittal or conviction. Failure to do so is an error of law. Finding an error of law due to insufficient reasons requires two stages of analysis: (1) are the reasons inadequate; (2) if so, do they prevent appellate review?

In other words, the Court concluded that even if the reasons are objectively inadequate, they sometimes do not prevent appellate review because the basis for the verdict is obvious on the face of the record. But if the reasons are both inadequate and inscrutable, a new trial is required. [ 15 ] In Sheppard , at para. 55, the Court in discussing a situation where the trial decision is deficient noted: Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court's explanation in its own reasons is sufficient.

There is no need in such a case for a new trial. The error of law, if it is so found, would be cured under the s. 686(1)(b)(iii) proviso. [ 16 ] As well, in C.A.S. v. Alberta (Director of Child Welfare), 2003 ABCA 233 , at para. 14 the Court held that, “Even when the reasons are quite sparse, evidence produced at trial can be sufficient to support the order at issue and should be considered in reviewing the adequacy of the reasons.” [ 17 ] Rule 6.14(4) provides that: 6.14(4) The record of proceedings is

(

a) the application before the master, (

b) affidavits and other evidence filed by the parties respecting the application before the master, (

c) any transcript of proceedings before the master, unless the Court dispenses with this requirement, and (

d) the master's judgment or order and any written reasons given for the decision. [ 18 ] From my review of the record, including the issues raised, the respective legal arguments, and the evidence, I am of the opinion that the record in its totality allows for meaningful appellate review of the decision's correctness. [ 19 ] As was the case with the Master, I too have had the benefit of full access to the voluminous filings by the parties, together with the respective arguments of the parties in regards to the issues raised during the application before the Master. 4.

If the reasons are inadequate and prevent meaningful appellate review, then what is the appropriate remedy? [ 20 ] Given my ruling in regards to issue number three, such ruling renders issue number four redundant. V. Determination of Issues [ 21 ] The task now for this Court is to determine each of the issues raised by the Appellant in his application. These issues are as follows: a. Has the Appellant shown that he did not voluntarily appear or otherwise submit to the jurisdiction of the British Columbia Supreme Court within the meaning of section 2(6) (

b) of REJA ? b. Has the Appellant shown that the BC Judgment was obtained through fraud within the meaning of section 2(6) (

d) of REJA ? c. Has the Appellant shown that the British Colombia Supreme Court acted without jurisdiction under the conflict of laws Rules of the court? d. Has the Appellant shown that the BC Judgment should be set aside because of how the s. 38 Order was obtained? e. Has to be Appellant shown that the BC Judgment should be set aside because of a limitation period in either the Canada Student Loans Act , or the British Colombia Limitations Act or the Canada Crown Liability and Proceedings Act ? f. Has the Appellant shown that the BC Judgment should be set aside because of the existence of Alberta Queen’s Bench action number 080316142?

a. Has the Appellant shown that he did not voluntarily appear or otherwise submit to the jurisdiction of the British ColumbiaSupreme Court within the meaning of section 2(6)(

b) of REJA? [22] With respect to this issue, in Laasch v. Turenne, 2009 ABQB 267, Graesser J., in discussing the REJA and the registration offoreign judgments said at paras. 76 and 77: 76 I recognize that there are policy reasons to give liberal and generous

interpretation to the Reciprocal Enforcement of JudgmentsAct. There are sound policy reasons to provide an inexpensive and simple method of registering and enforcing judgments fromreciprocating jurisdictions: Morguard Investments Ltd. v. De Savoye, (SCC), [1990] 3 S.C.R. 1077; Moss & Enochian v.Brown, (1997), 12 C.P.C. (4th) 361 (B.C.S.C.); Dollar v. Pleasure-Way Industries Ltd., [1995] S.J. No. 386 (Sask.Q.B.); and CentralGuaranty Trust Co. v. Deluca, (NWT SC), [1995] N.W.T.R. 200 (S.C.). 77 Nevertheless, for a foreign judgment to be registered using this process, the Act must be com-plied with.

Alberta residents areentitled to avail themselves of the various exceptions to registration, which exist for the purposes of ensuring that due process, proceduralfairness and public policy are also observed.

Applications under the Act are statutory in nature, and its express provisions must befollowed, notwithstanding the policy expressed by the Supreme Court in Morguard, Acura, Moss, Central Guarantee, and Wilson. [23] Furthermore, Graesser J., went on to discuss what is meant by the term “submit to the proceedings” as stated in section 2(6)(b)of REJA and had this to say at paras. 82, 118, 120-124: 82 The Applicants cite Deputy Minister of National Revenue (Customs & Excise) v. Camco Inc., (1987), 91 N.R. 391(F.C.A.); Roycev. MacDonald, (1909), (MB CA), 12 W.L.R. 347 (Man. C.A.); and R. v.

Ball, (AB KB), [1937] 1W.W.R. 482 (Alta. D.C.) to support their arguments that: (

a) The term "proceedings" is not a term of art but one that derives its precise meaning from its context; and (b) "Proceedings" is a "prescribed course of action for enforcing a legal right," and the meaning of "proceeding" is very wide, andincludes steps are measures that are not in any way connected with actions or suits. . . . 118 Our Court of Appeal in Hansroj v.

Ao, 2004 ABCA 223, held that taking any step would constitute attorning to the jurisdiction (atpara. 40): If someone takes steps in an Alberta suit (other than objecting to Alberta's jurisdiction or its order for service ex juris) then he attorns toAlberta's jurisdiction. He cannot later object to that jurisdiction or seek to upset the order for service out of the jurisdiction. . . . 120 In Manson v.

Canada (Department of Justice), 2006 ABCA 212, the Court held: "A party to litigation attorns to the jurisdictionby bringing a motion, returnable before the Court, and by appearing and arguing the motion." (At para. 5). 121 Attornment generally consists of taking active steps to contest the merits of the claim. The cases have also looked to whether

documents were filed with the Court. 123 However, filing in the Court may not be a necessary condition of attornment, if there is evidence of an intention to defend. 124 See also Gourmet Resources International Inc. Estate v. Paramount Capital Corp. (1993), (ON CA), 14 O.R.(3d) 319 (Ont. C.A.), in which the Ontario Court of Appeal held that the defendants had indicated an intention to submit to thejurisdiction of the U.S. Bankruptcy Court when it filed a notice to take a deposition in that Court and requested documents.

Thus itattorned to the jurisdiction. [24] In my view, the fact that the Appellant took steps to dispute the BC Judgment in the British Columbia courts is fatal to anyprotection that he may have had pursuant to section 2(6)(

b) of REJA as clearly he did “submit during the proceedings”. [25] Furthermore, the term “proceedings”in section 2(6)(

b) should not be restricted only to the proceedings that gave rise to theBC Judgment and exclude any subsequent proceedings pertaining to the BC Judgment.

To accept such an argument, would mean that adefendant noted in default could appeal the default judgment in the foreign court and if unsuccessful, still argue that they have notsubmitted during the proceedings and are entitled to the protection afforded by section 2(6)(b). [26] Accordingly, it is my opinion that when the Appellant took steps before the British Columbia courts to contest the BCJudgment he did “submit during the proceedings” within the context of section 2(6)(b). b. Has the Appellant shown that the BC Judgment was obtained through fraud within the meaning of section 2(6)(

d) of REJA? [27] The Appellant argues that the BC Judgment was obtained through fraud by the Respondent’s agent who acted before theBritish Columbia courts. In my opinion, I fail to see where a judgment creditor can be found to have committed a fraud upon a judgmentdebtor in a case where the judgment creditor merely seeks to enforce their rights before the courts. Accordingly, I find that the Appellanthas failed to meet the heavy onus to show that the BC Judgment was obtained by fraud within the meaning of section 2(6)(

d) of REJA. c. Has the Appellant shown that the British Colombia Supreme Court acted without jurisdiction under the conflict of laws rulesof the court? [28] With respect to the issue of jurisdiction, the Appellant has not demonstrated that the British Columbia courts lackedjurisdiction to grant the BC Judgment, given the fact that the Appellant, by his own conduct, participated in the proceedings.Accordingly, if there was any issue fatal to the competency of the British Columbia courts jurisdiction in this matter, it has been rendereda nullity by the Appellant’s participation in the proceedings.

This conclusion was recognized in the case of Avco Financial ServicesRealty Ltd. v. Harvie (1985), (AB KB), 60 A.R. 266, where Dixon, J., in discussing the issue of jurisdiction stated atpara. 21: 21 It is now necessary to deal with the remaining two grounds raised by the applicant. The first is that the British ColumbiaSupreme Court acted without jurisdiction under the Conflict of Law Rules applicable in the Court of Queen's Bench of Alberta.

I find itdifficult to conceive that there can be much room for the applicant of any Conflict of Law Rules where the party contesting a foreignproceeding has been found to have attorned to the jurisdiction of the foreign court. McLeod in his text, The Conflict of Laws (CarswellLegal Publications 1983) states at page 592: "A survey of the cases, then, establishes that a foreign court may acquire competent international jurisdiction that it would not otherwisehave if the defendant, by his conduct, submits to the jurisdiction of the foreign court.

The most obvious means whereby a defendantsubmits to the jurisdiction of the court is by admitting service and entering in an unconditional appearance in person or through asolicitor."

d. Has the Appellant shown that the BC Judgment should be set aside because of how the s. 38 Order was obtained? [ 29 ] The Appellant argues that the BC Judgment should be set aside because of the manner in which the

section 38 Order was obtained. In this respect, the Respondent submits that the Appellant is merely attempting to re-litigate the merits of the BC Judgment. The merits of the BC Judgment are not a ground under section 2(6) of REJA . I agree with the Respondent. I therefore find that the Appellant has failed to meet the onus of showing that the

section 38 Order or the manner in which it was sought is a ground to set aside the registration of the BC Judgment. e. Has to be Appellant shown that the BC Judgment should be set aside because of a limitation period in either the Canada Student Loans Act , or the British Colombia Limitations Act or the Canada Crown Liability and Proceedings Act ? [ 30 ] With respect to the limitations issue, I find that the Appellant’s argument in this regard is once again merely an attempt to re- litigate the BC Judgment. Once again, the merits of the BC Judgment are not a ground under section 2(6) of REJA .

Accordingly, the Appellant has failed to meet the onus of showing that a limitation in either of the previously mentioned statutes is a ground to set aside the registration of the BC Judgment. f. Has the Appellant shown that the BC Judgment should be set aside because of the existence of Alberta Queen ’s Bench action number 080316142? [ 31 ] With respect to this issue, the existence of another action does not fall within the grounds under section 2(6) of REJA . In this respect,

section 7 of REJA specifically provides that such legislation is not a bar to the right of a judgment creditor to bring an action “on the judgment creditors judgment or on the original cause of action”. Accordingly, I find that the Appellant has failed to meet the onus of showing that the existence of Alberta Queen’s Bench action number 080316142 is a ground to set aside the registration of the BC Judgment. VI.

Conclusion [ 32 ] In conclusion, the evidence on the record is sufficient to allow for meaningful appellate review with regard to all issues raised, including any for which it is determined that the reasons were inadequate, and upon review I find no reason to upset the order of Master Wacowich dated March 30, 2011. Although the reasons of the Master may have been insufficient, his conclusions were correct and for the reasons above stated, I therefore dismiss the appeal. VII. Costs [ 33 ] Costs may be spoken to within sixty days of this Decision.

Heard on the 29 th day of July, 2011 and the 12 th day of September, 2011. Dated at the City of Edmonton, Alberta this 15 th day of September, 2011.

Don J. Manderscheid J.C.Q.B.A. Appearances: James Elford Department of Justice Canada for the Plaintiff Lawrence Franklin Glazer Appeared on his own behalf