Martin v Kubes, 2021 ABQB 479

Court of Queen’s Bench of Alberta Citation: Martin v Kubes, 2021 ABQB 479 Date: 20210621 Docket: 2001 14135 Registry: Calgary Between: Gregory Martin Plaintiff/Respondent - and - Hilda Kubes also known as Hilda Sebekovic Defendant/Appellant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice J.C. Price _______________________________________________________ I. Introduction [ 1 ] The Plaintiff, Hilda Kubes, obtained a judgment from the Ontario Superior Court on August 20, 2019 in the total amount of $44,913.86 (the “2019 Ontario Judgment”). Ms.

Kubes then filed a Civil Claim on September 6, 2019 with the Provincial Court of Alberta to enforce the 2019 Ontario Judgment. [ 2 ] An application for

summary judgment by Ms. Kubes and a cross-application for

summary dismissal by Mr. Martin were

made. Those applications were heard on October 30, 2020 by the Honourable Judge D.B. Higa of the Provincial Court of Alberta (the “PCJ”). [ 3 ] On November 3, 2020, the PCJ issued his decision denying Mr. Martin’s application for

summary dismissal and granting

summary judgment in favour of Ms. Kubes in the amount of $44,913.86 plus interest. On December 9, 2020, the PCJ issued reasons respecting costs. The total amount awarded to Ms. Kubes, including interest and costs, is $48,187.72. [ 4 ] Mr. Martin appeals the decision of the PCJ. [ 5 ] The standard of review applicable to an appeal from the Civil Division of the Provincial Court of Alberta on a question of law is correctness.

Questions of fact, factual inferences, and the application of a legal standard to questions of fact are reviewed for palpable and overriding error: Super Save Disposal (Alberta) Ltd. v Shenwei Enterprises Ltd ., 2017 ABQB 804 at para 3 ; McCallum v Edmonton Frame and Suspension

(2000) Ltd. , 2016 ABQB 271 at paras 48-50 . [ 6 ] The issue in this appeal is whether the PCJ erred in law or fact in granting

summary judgment in favour of Ms. Kubes and in dismissing Mr. Martin’s application for

summary dismissal. [ 7 ] For the reasons that follow, I dismiss Mr. Martin’s appeal. II. Background Facts [ 8 ] In 2005, Ms. Kubes loaned Mr. Martin $25,000.00. The loan was not repaid. [ 9 ] On November 1, 2007, Ms. Kubes filed a Statement of Claim against Mr. Martin in the Ontario Superior Court of Justice. [ 10 ] On September 15, 2010, that Court granted Ms. Kubes judgment for damages and costs in the amount of $30,000, plus pre- judgment interest (the “2010 Ontario Judgment”). [ 11 ] On May 22, 2017, Ms.

Kubes filed an Originating Application and supporting Affidavit with the Court of Queen’s Bench of Alberta seeking to enforce the 2010 Ontario Judgment pursuant to the Reciprocal Enforcement of Judgments Act , RSA 2000, c R-6 (“ REJA ” ). [ 12 ] On August 1, 2018, the Honourable Justice L.B. Ho Ordered the Clerk of the Court of Queen’s Bench of Alberta to register the 2010 Ontario Judgment in the amount of $41,813.40 as a judgment in Alberta in favour of Ms. Kubes against Mr. Martin. [ 13 ] On October 29, 2018, Mr.

Martin filed an Application to set aside the registration of the 2010 Ontario Judgment on the basis that more than 6 years had elapsed since it was granted and, therefore, Ms. Kubes was out of time to have it registered pursuant to REJA . [ 14 ] On November 19, 2018, Justice Ho set aside her August 1, 2018 Order without prejudice to Ms. Kubes’ ability to take further action against Mr. Martin. [ 15 ] On December 11, 2018, Ms. Kubes filed a Statement of Claim in the Ontario Superior Court of Justice for an action on the 2010 Ontario Judgment.

The pleading sets out, among other things, a certificate endorsed by the Ontario Superior Court of Justice showing that the balance remaining due and payable under the 2010 Ontario Judgment as at June 12, 2017 was $41,813.40. The Statement of Claim that “[t]his is an action on the Judgment”, referring to the 2010 Ontario Judgment. Ms. Kubes pled and relied upon section 16(1) (

b) of the Limitations Act , 2002, S.O, 2002, c. 24, Sch. B , which provides that there is no limitation period with respect to a proceeding to enforce an order of a court. [ 16 ] Mr. Martin did not file a defence to the December 11, 2018 Statement of Claim and Ms. Kubes was awarded the 2019 Ontario Judgment in the total amount of $44,913.86. The 2019 Ontario Judgment is larger than the 2010 Ontario Judgment because interest continued to accrue and Ms. Kubes incurred further costs in her attempts to enforce the 2010 Ontario Judgment. [ 17 ] Mr. Martin was sent the 2019 Ontario Judgment via registered mail.

He did not appeal. Payment was demanded, but no amount was paid. [ 18 ] On September 6, 2019, Ms. Kubes filed a Civil Claim in the Provincial Court of Alberta to enforce the 2019 Ontario Judgment. On October 7, 2019, Mr. Martin acknowledged receipt of the Civil Claim. [ 19 ] On October 23, 2019, Mr. Martin filed a Dispute Note and Counterclaim alleging, inter alia , that Ms. Kubes’ claim was barred by reason of the Limitations Act , RSA 2000, c L-12 and that the 2019 Ontario Judgment was obtained in “bad faith”. Mr. Martin counterclaimed for damages and costs totalling more than $40,000. On November 15, 2019, Ms.

Kubes filed a Dispute Note to Counterclaim in response. [ 20 ] On January 29, 2020, Ms. Kubes filed an application for

summary judgment and for an order dismissing Mr. Martin’s counterclaim. On September 25, 2020, Mr. Martin filed an application for

summary dismissal of Ms. Kubes’ Civil Claim. [ 21 ] As noted above, the PCJ granted

summary judgment in favour of Ms. Kubes and dismissed Mr. Martin’s

summary dismissal application. The PCJ noted that Mr. Martin had withdrawn his counterclaim. [ 22 ] On November 30, 2020, Mr. Martin filed a Notice of Appeal, citing these grounds: 1. The Court of Queen’s Bench in Alberta previously refused to register a Judgment of the Ontario court pursuant to the Reciprocal Enforcement of Judgment Act for reasons that the application was brought outside the time limits prescribed in the Act within which to

bring such an application. 2. The Appellant says that the bringing of a second claim at common law to enforce a judgment founded on the same cause of actionas had already been refused, is an abuse of process of the Alberta Courts and as a matter that stands res judicata of the Courts in Alberta. 3. The Appellant says that the common law action brought in the Provincial Court seeks a remedial order in Alberta more than 2years after the cause of action arose and is thereafter outside of the time limits prescribed by the Limitations Act, and upon which theAppellant pleads and relies as an absolute defence. 4.

Such further and other grounds as the Appellant may later rely upon. [23] I heard the appeal of the PCJ’s decision virtually via WebEx on May 14, 2021. III. Law and Analysis [24] Pursuant to Rule 7.3 of the Alberta Rules of Court, a party may apply to the Court for

summary judgment or

summarydismissal in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded. [25] In Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 at para 21, the Court of Appealconfirmed that determining whether

summary judgment or

summary dismissal is appropriate requires application of the three-part testset out by the Supreme Court in Hryniak v Mauldin, 2014 SCC 7: There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion forsummary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows thejudge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [26] Mr.

Martin’s arguments before me were essentially the same as those he made before the PCJ. He contends that Ms. Kubes’claim is out of time or, in the alternative, that it is an abuse of process. He relies upon section 3(1) of the Limitations Act, which states: 3(1) Subject to subsections (1.1) and (1.2) and sections 3.1 and 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, [27] Mr. Martin points out that “injury” is defined in the Limitations Act as: (

i) personal injury, (ii) property damage, (iii)economic loss, (iv) non-performance of an obligation, or (

v) in the absence of any of the above, the breach of a duty. He argues that Ms.Kubes’ “injury” arose in 2005, that her claim is statute-barred and that he is entitled to rely on the limitations defence. He argues thatlimitation periods should create certainty and that a judgment debtor should be able to avoid paying a judgment if the judgment creditorfails to enforce it, to register it within the time allowed under REJA or to bring a claim under it in Alberta within the limitation period ascomputed from the date of the original injury. [28] Although Mr.

Martin is correct that the Limitations Act applies, his position regarding the original “injury” is wrong both infact and in law. He is confusing the limitation period for commencement of actions with a party’s ability to enforce a judgment. [29] As noted above, s 16(1)(

b) of the Ontario Limitations Act, provides that there is no limitation period in respect of a proceedingto enforce an order, which would include a judgment. Accordingly, Ms. Kubes was within her statutory rights to obtain the 2019 OntarioJudgment to enforce the 2010 Ontario Judgment.

She cites South Holly Holdings Ltd v Sanita, 2011 CarswellOnt 16064 at para 4 forthe proposition that a domestic judgment can be kept alive and enforced by renewing the writ or by suing on it within the applicablelimitation period to obtain a “fresh” or “new” judgment: see also Adelaide Capital Corporation v 412259 Ontario Ltd., at para. 11. [30] Mr. Martin asserts that the possibility of obtaining a new judgment in Ontario is inequitable and that the 2019 OntarioJudgment allowed Ms. Kubes artificially to avoid the Alberta limitation period.

I disagree. [31] Unlike in Ontario, Alberta judgments expire 10 years from the day the judgment takes effect unless that judgment is renewedor an action is brought on that judgment within the 10-year period: Civil Enforcement Act, RSA 2000, c C-15, s 27(2)(b). Thus, inAlberta, judgments can be renewed or a new action can be brought, as long as the renewal or action is filed within 10 years of the date ofthe judgment. [32] Further, under Rule 9.21 of the Alberta Rules of Court, the Court may grant a judgment creditor a new judgment or order on aformer judgment or any part of it that has not been paid.

Essentially, an Alberta judgment can last forever, so long as it is renewed every10 years. [33] The limitation period to commence an action in Alberta to enforce a foreign judgment is 2 years from the date of the judgmentitself: s 3(1)(

a) Limitations Act; Laash v. Turrene, 2012 ABCA 32 at paras 15 and 16.

[ 34 ] The record before me establishes that Ms. Kubes obtained the 2019 Ontario Judgment on August 20, 2019 and filed her Civil Claim with the Provincial Court on September 6, 2019. Thus, she commenced her action in Alberta to enforce the 2019 Ontario Judgment well within time. [ 35 ] Mr. Martin suggested that the 2019 Ontario Judgment was obtained wrongfully because the matter was res judicata .

I disagree and, in any event, as stated by the Supreme Court of Canada in Pro Swing Inc v ELTA Golf Inc , 2006 SCC 52 at para 89 , this Court should not “...look beyond the judgment to the merits of the case.” [ 36 ] The defences to the enforcement of a foreign judgment are narrow in application and include fraud, public policy and lack of natural justice: Beals v Saldanha , 2003 SCC 72 at paras 39-43 , 59-62, 65, 71-72 and 75. Mr. Martin proffered no evidence to support any of these defences and I find they are not applicable in the circumstances of this case. [ 37 ] Mr. Martin argued that because Ms.

Kubes is out of time to register the 2010 Ontario Judgment pursuant to REJA , she should be precluded from registering the 2019 Ontario Judgment. However, Ms. Kubes did not apply to register the 2019 Ontario Judgment under REJA , choosing instead to file a Civil Claim. She was entitled to proceed that way and there is nothing illegal or untoward in her having done so. A party who has a foreign judgment need not register it under REJA but can instead file a claim in Alberta to enforce the foreign judgment. [ 38 ] REJA does not displace an enforcement action on a foreign judgment.

Section 7 of REJA states: Nothing in this Act deprives a judgment creditor of the right to bring action on the judgment creditor’s judgment or on the original cause of action (

a) after proceedings have been taken under this Act, or (

b) instead of proceeding under this Act, and the taking of proceedings under this Act, whether or not the judgment is registered, does not deprive a judgment creditor of the right to bring action on the judgment or on the original cause of action. [ 39 ] Often, if REJA applies, that may be the easiest and most cost-effective way to proceed. However, in this case, for reasons that were explained to me in oral submissions, it was not the best choice for Ms. Kubes. In respect of the 2010 Ontario Judgment, Mr.

Martin appeared, defended, or attorned or otherwise submitted to the jurisdiction of Ontario, but for his own reasons, he did not do so in respect of the 2019 Ontario Judgment. Consequently, registering the 2019 Ontario Judgment under REJA would have been more complicated. Had Ms. Kubes proceeded in that fashion, the limitation period to commence a new action to enforce the 2019 Ontario Judgment might have expired and she would have lost that opportunity. [ 40 ] Lastly, Mr.

Martin argued that I should exercise my equitable discretion to grant him immunity from liability under the equitable doctrines of acquiescence or laches pursuant to s 10 of the Limitations Act : Nothing in this Act precludes a court from granting a defendant immunity from liability under the equitable doctrines of acquiescence or laches, notwithstanding that the defendant would not be entitled to immunity pursuant to this Act. [ 41 ] I gave counsel the opportunity to submit additional authorities in respect of this argument.

I have reviewed them and find that the equitable doctrines of acquiescence or laches do not apply in the circumstances of this case based on the record before me. As in all

summary judgment applications, parties are to put their best foot forward. I find that Mr. Martin has not provided sufficient evidence to support me granting him immunity from liability under either the equitable doctrines of acquiescence or laches: see Schnick v Rosen , 2009 ABQB 189 and 681210 Alberta Ltd v Hunter , 2012 ABCA 83 . [ 42 ] Furthermore, it is not egregious in my view to obtain a judgment and not take steps to collect until some time late. Judgments often lay dormant while the judgment debtor is not in a position to pay and/or the judgment creditor is not in a position to enforce.

In my opinion, it would be more egregious to permit a judgment debtor to evade paying the legally obtained judgment. IV. Decision [ 43 ] I find that the record before the PCJ allowed him to make the necessary findings of fact and apply the law. I find that he correctly identified and applied all of the relevant legal tests and principles of law and made no overriding and/or palpable errors of fact in granting Ms. Kubes

summary judgment and in dismissing Mr. Martin’s application for

summary dismissal. [ 44 ] Mr. Martin’s appeal of the PCJ’s decision is dismissed. [ 45 ] As the successful party, Ms. Kubes is entitled to costs. If counsel cannot resolve the issue of costs, counsel for Ms. Kubes shall submit written costs submissions not to exceed five pages with a Bill of Costs and any Offer to Settle attached within 30 days of the issuance of these written reasons. If desired, counsel for Mr. Martin shall submit a written response not to exceed five pages, within 30 days of receipt of Ms. Kubes’ costs submissions. All submissions are to be filed and copies provided to me through my judicial assistant. Heard on the 14 th day of May, 2021.

Dated at the City of Calgary, Alberta this 21 st day of June, 2021. J.C. Price J.C.Q.B.A. Appearances: Lindsey M. Boulter for the Plaintiff/Respondent Quinn M. Kuefler for the Defendant/Appellant