2018 QCCQ 3884, 2018 QCCQ 3884

Styles c.

Pronman 2018 QCCQ 3884 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-234229-162 DATE: June 8, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ Brian styles Plaintiff v. dan pronman -and- gary pronman Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff seeks the recognition and enforcement of a decision rendered outside Québec, namely a cost judgment entered against Defendants on November 9, 2015 by the United States District Court, Southern District of Florida.

Plaintiff’s demand is based on Articles 3155 and following of the Civil Code of Quebec (“ C.C.Q. ”) [ 2 ] Defendant Dan Pronman contests on the ground that the judgment at issue is not final and that it is inconsistent with public order. Defendant Gary Pronman failed to answer and the case is proceeding by default against him. factual background [ 3 ] Plaintiff is a resident of Palm Beach, Florida, in the United States of America. [ 4 ] Defendants Gary Pronman and Dan Pronman are also residents of the United States.

They are shareholders and directors of Movie Star Muscle Cars Inc. (“ MSMC ”), a corporation domiciled in Dollard-des-Ormeaux. [ 5 ] On June 22, 2012, MSMC and Defendants filed a copyright infringement claim against Plaintiff and Samantha Styles in Florida. They claimed over US$8,000,000 in statutory and actual damages. [1] [ 6 ] On August 1, 2014, the Honorable United States District Court judge Kenneth A.

Marra rendered an order striking MSMC as Plaintiff in the above-mentioned proceedings, leaving only Defendants as Plaintiffs. [2] [ 7 ] On May 15, 2015, Judge Marra dismissed Defendants’ copyright infringement claim. [3] Following this dismissal, on November 9, 2015, Judge Marra entered a cost judgment condemning Defendants to pay costs in the amount US$16,510.88, the amount bearing interest at a rate of 0.23% (the “ Judgment ”). [4] It is this decision that Plaintiff seeks to have recognized and declared enforceable in Québec. ANALYSIS [ 8 ]

Article 3155 C.C.Q. reads as follows: 3155.

A decision rendered outside Québec is recognized and, where applicable, declared enforceable by the Québec authority, except in the following cases: (1) the authority of the State where the decision was rendered had no jurisdiction under the provisions of this Title; (2) the decision, at the place where it was rendered, is subject to an ordinary remedy or is not final or enforceable; (3) the decision was rendered in contravention of the fundamental principles of procedure; (4) a dispute between the same parties, based on the same facts and having the same subject has given rise to a decision rendered in Québec, whether or not it has become final, is pending before a Québec authority, first seized of the dispute, or has been decided in a third State and the decision meets the conditions necessary for it to be recognized in Québec; (5) the outcome of a foreign decision is manifestly inconsistent with public order as understood in international relations; (6) the decision enforces obligations arising from the taxation laws of a foreign State. [ 9 ] It is well established that recognition and enforcement of foreign judgments is the rule and refusal to enforce, the exception.

Article

3155 C.C.Q. creates a presumption in favour of recognition of a foreign judgment; a foreign judgment will be recognized and declared enforceable except if the contesting party establishes that one of the stated exceptions applies. [5] [ 10 ] Defendant Dan Pronman invokes two of these exceptions to oppose recognition in the instant case. He claims: (

a) that the Judgment is not final; and (

b) that it is contrary to public order.

a) Is the Judgment Final? [ 11 ] Plaintiff has filed two affidavits signed by Mr. Brett J. Horowitz, a U.S. attorney licensed to practice in the State of Florida since 2001. In these affidavits, Mr. Horowitz sets out that in order to appeal the Judgment, Defendants were required to file a notice of appeal with the Federal District Court within 30 days of the entry of the Judgment on November 9, 2015. [6] He further states, with a supporting extract from the Court docket, [7] that no notice of appeal was filed by Defendants. [ 12 ] Mr.

Horowitz further explains that because Defendants “ did not appeal th[e] Judgment to the Eleventh Circuit, they have no option to seek Certiorari relief from the U.S. Supreme Court; nor is there any direct right of appeal to the Supreme Court from the District Court ”. Even if these recourses were possible, “ the longest deadline would have elapsed no later than 90 days from the November 9, 2015 Judgment ”. [8] Mr.

Horowitz concludes that the Judgment is “ final and without opportunity to appeal to any court whatsoever” . [ 13 ] Although Defendant Dan Pronman asserts that the Judgment is still subject to appeal, he offered no evidence regarding U.S. procedural law and failed to explain what right of appeal may still lie. [ 14 ] In light of the uncontested evidence offered by Plaintiff through the affidavits of Mr. Horowitz, the Court concludes that the Judgment is indeed a final judgment.

b) Is the Judgment Inconsistent with Public Order? [ 15 ] Defendant Dan Pronman also argues that the Judgment is inconsistent with public order, referring to the exception set out in Article 3155 (5) C.C.Q. [ 16 ] To bar recognition and enforcement of a foreign judgment under this exception, the outcome of said judgment must be inconsistent with public order as it is understood in international relations.

This corresponds to fundamental values underlying the international legal order. [9] The Court must therefore determine if the outcome of the Judgment, if recognized and declared enforceable in Québec, offends any such fundamental value. [10] [ 17 ] The Court fails to see how the outcome of the Judgment could be inconsistent with any fundamental value underlying the international legal order. [ 18 ] The Judgment condemns Defendants to the payment of costs of US$16,510.88 following the dismissal of their copyright infringement claim.

This is consistent with the general rule in Québec, as in numerous other legal jurisdictions, that the losing party must support costs.

The extent and nature of the costs that can be awarded vary and an extraordinary condemnation for costs can, in certain circumstances, be considered to fall within the exception of Article 3155 (5) C.C.Q. [11] Here, however, the amount of the costs awarded is not unusual or extraordinary. [ 19 ] Defendant Dan Pronman suggests that the public order exception applies because the dismissal of Defendants’ copyright infringement claim is in violation of the Bern Convention for the Protection of Literary and Artistic Works , to which the U.S. and Canada are contracting parties.

He argues that the rights and recourses for copyright infringement under U.S. law are more restricted than under Canadian law, because only actual damages can be claimed. [ 20 ] This argument is clearly ill-founded. [ 21 ] The Judgment which Plaintiff seeks to have recognized and declared enforceable is not the judgment that dismissed the copyright infringement claim, but the subsequent judgment condemning Defendants to costs. The issue before the Court concerns the cost judgment only.

It is unnecessary to consider the merits of the argument based on the Bern Convention for the Protection of Literary and Artistic Works . [ 22 ] Given that Defendant Dan Pronman has failed to demonstrate that one of the exceptions of

Article 3155 C.C.Q. applies, the Judgment must be recognized and declared enforceable. The amount of US$16,510.88 corresponds to CAD $21 947.91. [12] FOR THESE REASONS, THE COURT: GRANTS the demand; DECLARES enforceable in the province of Québec the judgment rendered by Justice Kenneth A. Marra of the Federal District Court, County of Palm Beach, Florida, United States of America, bearing file number 12-80674-CIV-MARRA dated November 9, 2015; CONDEMNS Defendants solidarily to pay to Plaintiff the amount of CAD $21 947.91, together with interest at the rate of 0.23% since May 15, 2015 as provided for in said judgment; THE WHOLE, WITH LEGAL COSTS .

__________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: December 6, 2017 Dan Pronman For himself Me Simon Rainville Lapointe Rosenstein Marchand Melançon, L.L.P. Attorneys for Plaintiff