Cassar v Anderson, 2017 ABQB 229

Court of Queen’s Bench of Alberta Citation: Cassar v Anderson, 2017 ABQB 229 Date: 20170330 Docket: 1603 20588 Registry: Edmonton Between: Danielle Cassar Plaintiff - and - Florence Anderson Defendant _______________________________________________________ Reasons for Decision of W.S. Schlosser , Master, Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is an application for

summary judgment on a judgment from the Superior Court of Quebec. In Alberta, the enforcement of foreign judgments is governed by Reciprocal Enforcement of Judgments Act , RSA 2000, c R-6, and the common law. Alberta reciprocates with all provinces and territories except Quebec. Bringing a judgment from Quebec requires relying on the common law. [ 2 ] The procedure here started in the Civil Division of the Provincial Court but it was transferred to Queen’s Bench. There was a Dispute Note filed in the Provincial Court.

In this Court, not only is the application vigorously opposed, there is a cross-application for dismissal, or, in the alternative, for security for costs. Facts [ 3 ] The lis between the 90 year old Respondent and the Applicant, her sister-in-law, began with some acrimonious estate litigation in Texas. Danielle Cassar is the widow of the brother of the late Aline Gausepohl. Florence Anderson is the deceased’s sister. [ 4 ] Just before she died, Aline Gausepohl changed her Will; disinheriting Ms. Anderson and benefiting Ms. Cassar’s family. [ 5 ] The validity of this Will was contested.

A Texas ‘Notice of Contestation’ was filed; alleging torts and moral failings such as: ‘undue influence’, ‘fraudulent inducement’, ‘tortious interference with inheritance rights’, ‘greed’, and willful, wanton and malicious actions on the part of the Plaintiff in getting Ms. Gausepohl to change her Will. [ 6 ] The Defendant’s Texas lawyers sent the filed Notice of Contestation to the National Bank of Canada (Banque Nationale) in Sherbrooke, Quebec. The Texas lawyer says this was standard practice to alert financial institutions of litigation affecting a deceased’s accounts. The bank froze the accounts.

The Plaintiff sued for defamation.

[7] Many of the documents exhibited to the Applicant’s affidavit, including the Reasons of the Quebec Superior Court, are inFrench. The Plaintiff herself is a Quebec resident. The Respondent lives here. [8] The Plaintiff/Applicant declined her right under the Languages Act, RSA 2000 c L-6 to have the proceedings conducted inFrench[1]. [9] The parties also declined to provide translations of the Quebec court documents and instead were content to accept the textof the affidavits referencing these exhibits. [10] The Defendant is a resident of St. Albert, Alberta.

She conducts her affairs through an Attorney and, presumably, through herTexas counsel. We do not know whether she has capacity. The Power of Attorney granted to her Attorney, Gail Anderson, hadimmediate effect and was not triggered by the loss of capacity. [11] The Plaintiff tried to serve the Defendant personally, but in vain. The process server’s affidavit sets out the attempts. Personalservice was unsuccessful despite the process server (apparently) having spoken to Ms. Anderson personally. [12] The Plaintiff applied for and got an Order for substitutional service on the Texas lawyer.

The documents were sent first byemail. The Texas lawyer responded immediately; essentially inviting the Quebec lawyer (and the Quebec Court) to ‘light a schuck’saying: “we will not be responding to whatever you think you have legally served”. [13] The notice to the Defendant was in English, as was the covering letter. But the other documents were in French. I take noticethat Texans, if they are to speak a second language are more likely to speak Spanish than French. [14] The Texas lawyer’s response prompted the Plaintiff’s to return to court for directions.

The Court determined that the emailcommunication was not good service (irrégulière) and Ordered that service be accomplished by “ordinary means”. [15] The Pleadings were then physically delivered to the Houston lawyers. [16] The documents were also given to the Defendant’s Attorney in British Columbia; first by email and then by delivery to herresidence. [17] The Defendant did not respond. The matter proceeded by default. Justice Ouellett of the Quebec Superior Court, in a 12 pagewritten decision, gave Judgment against the Defendant for $5000 plus interest.

Service by delivery on the Texas lawyers was validated inthe Reasons. List of Authorities 1. Beals v Saldanha, 2003 SCC 72; 2. Four Embarcadero Center Venture v Kalen, (ON SC), [1988] OJ 411, per Henry J.; 3. Simons v Carr & Co, (AB KB), [1996] 41 Alta LR (3d) 13, per Nash J.; 4. Society of Lloyds v Berezowski, 2006 ABQB 625, per Laycock M.; 5. DeAbreu v Bayley, 2012 ONSC 5445; 6. SHN Grundstuecksverwaltungsgesellschaft MBH & Co v Hanne, 2014 ABCA 168; 7. Dingwall v. Foster, 2012 ABQB 476, per Burrows J.; 8. Metcalfe Estate v Yamaha Motor Powered Products Co, Ltd, 2012 ABCA 240; 9.

Rizvi v Syed, 2016 ABQB 400, per Prowse M.; 10. Gutstadt v Reininger, 1995 Carswell Ont 1071, per McCombs J.; 11. Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; 12. Civil Code of Québec, CQLR c CCQ-1991; and 13. Alberta Rules of Court, Alta Reg 124/2010, Rule 11.27. By the Court 1. The Law of Defamation in Canada, 2nd ed. Raymond E. Brown Carswell (looseleaf); and 2. Dooley v CN Webber Ltd (1994), (ON SC), 19 OR (3d) 779. Analysis

[ 18 ] The starting point is the principle of comity and the idea that the Court should be reluctant to treat the provinces of Canada as a series of foreign states. [ 19 ] The leading case is Beals . The main grounds for challenging the importation of a foreign judgment are: 1. Whether there is a real and substantial connection between the foreign jurisdiction and the parties ( Beals, Dingwall at para 29 ); 2. The judgment was obtained by fraud ( Beals at para 43 ); 3. The foreign proceedings are contrary to fundamental justice ( Beals at paras 59-64 ); 4.

The foreign judgment is contrary to public policy ( Beals at para 71 ). [ 20 ] There is a real and substantial connection between Quebec, the Plaintiff and the tort of defamation. The defence of fraud does not apply here. [ 21 ] Beals is about a Florida judgement but it has general application. With respect, some of the language in that case is inappropriate when applied to a Quebec judgment, though the concepts are clear enough. Natural Justice [ 22 ] The Defendant’s first objection is about service. [ 23 ] The failure of notice is a failure of natural justice.

I acknowledge that Canada and the U.S. are contracting states to the Hague Convention .

I also acknowledge that the purpose of the Convention is to ameliorate a rigid doctrine of sovereignty that would otherwise stand in the way of service ex juris. [ 24 ] The Metcalfe decision in our Court of Appeal concluded that the Rules, as they then were, required adherence to the Hague Convention for service in the U.S. [ 25 ] Metcalfe also stood for the proposition that service that was irregular for the failure to comply, could not subsequently be validated. [ 26 ] Perhaps in response to this decision, AR 140/2013 amended Rule 11.27 as follows: 13 Rule 11.27 is amended by adding the following after subrule (3):

(4) Subrules (1) to (3) apply despite (

a) any previous order that permitted or directed service of the document by a particular method, and (

b) the fact that the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters applies to service of the document. [ 27 ] I see no mention of the Hague Convention in the portions of the Quebec Civil Code cited in court.

The fact that the Quebec process was not served in Texas in accordance with the Hague Convention is not fatal, even from an Alberta perspective. [ 28 ] The purpose of Rule 11.27 is to accept a method of service, though not contemplated by the Rules (or an agreement between the parties), that the Court is satisfied would likely have brought the document to the attention of the person served. In this case, the Quebec Court was confident that delivering the pleadings to the Texas lawyers would bring it to the attention of the Defendant and the Court validated this Notice under

section 138 of the Quebec Code of Civil Procedure . The materials were also provided to the Defendant’s Attorney in British Columbia.

Section 138 of the Quebec Code of Civil Procedure is similar to our Rule 11.27. [ 29 ] The easiest way to approach a natural justice defence is to ask whether an Alberta Court might have made a similar order. In this case the answer is plainly yes. Substitutional service on a lawyer, or on an attorney under a power of attorney, is not a first choice - mainly because the Court does not wish to put a lawyer who might have lost contact with her client in a difficult position. But it is sometimes done. [ 30 ] The threshold is whether minimum standards of fairness have been met ( SHN ).

It is not whether certain arguments might have succeeded before the foreign court, had those arguments been made, but whether there was a fair opportunity to have made them ( Society of Lloyds at para 41 , per Laycock, M.). [ 31 ] The burden of demonstrating unfairness in the foreign process lies with the Defendant ( Beals para 61 ). The merits of the case are irrelevant. In my view, the Defendant has not discharged the burden imposed upon her to demonstrate that the Quebec Court acted contrary to the principles of natural justice.

Public Policy [ 32 ] Major J., in Beals , writing for the majority said: 75 The use of the defence of public policy to challenge the enforcement of a foreign judgment involves impeachment of that judgment by condemning the foreign law on which the judgment is based. It is not a remedy to be used lightly. The expansion of this defence to include perceived injustices that do not offend our sense of morality is unwarranted. The defence of public policy should continue to

have a narrow application. [ 33 ] The Defendant argues that the Texas Court documents attract a defence of absolute privilege. The Defendant argues that the protection afforded by this defence is itself a product of public policy and that the failure to give effect to this defence by the Quebec Court is, a failure of public policy. For that reason, she argues that the Judgment ought not to be enforced here. [ 34 ] I note that court documents, under the Quebec Civil Code , attract only qualified privilege in that jurisdiction ( Brown pp 12-48, 49).

However, foreign law is presumed to be the same as the law in the domestic jurisdiction, unless proved otherwise by expert evidence.

No such evidence was tendered on this point so I am going to give the Defendant the benefit of doubt and assume that the starting point is that the Texas Court documents enjoy the protection of absolute privilege. [ 35 ] Even absolute privilege can be lost, depending on the motives, or the use of the document ( Rizvi , per Prowse, M., Brown pp 1-48, 12-219).Bad faith, malice or improper purpose can have the effect of taking away the protection. [ 36 ] I note that Ouellett J. in the Quebec Superior Court did not make an express finding of malice which would take the use of the Court document outside the scope of that protection.

But this is a judgment that began with a default. The Quebec pleading alleges (for example): … 61.

En particulier, les demandeurs allèguent que les allégations diffamatoires dans la Contestation et dans la Contestation Amendée sont fausses, qu’elles sont non pertinentes au litige, qu’elles ont été faites de mauvaise foi, ou, subsidiairement, qu’elles ont été faites de manière téméraire équivalent à de la mauvaise foi, et qu’il n’y avait aucune cause raisonnable ni probable de les faire; … A deemed admission of bad faith arising from the default might well defeat a defence of absolute, or qualified privilege. [ 37 ] The Supreme Court of Canada in Beals confirms that the defence of public policy should not be used lightly.

The threshold is high. The test for a public policy defence is not whether this Court would have come to the same decision and perhaps not even whether it could have been made here but whether it is offensive to the receiving jurisdictions’ basic concept of morality. [ 38 ] The Quebec decision certainly does not cross that threshold. The defence fails on this ground as well. Disposition [ 39 ] The application is allowed and the cross-application is dismissed with costs on Column One, Item 7(1) for the application and the cross-application.

The costs are to be reduced by the factor indicated in Rule 10.42 to a net award of $750. Heard on the 13 th day of March, 2017. Dated at the City of Edmonton, Alberta this 30 th day of March, 2017. W.S. Schlosser M.C.Q.B.A. Appearances: Nicholas Trofimuk Reynolds, Mirth, Richards & Farmer LLP for the Plaintiff Brent Rathgeber, Q.C. Brent Rathgeber Law & Advocacy for the Defendant