2024 QCCS 65, 2024 QCCS 65

Auston Transfer & Processing c. Shredderhotline.com 2024 QCCS 65 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No.: 500-17-117826-217 DATE: January 9, 2024 _____________________________________________________________________ PRESIDED BY THE HONOURABLE SHAUN E. FINN, J.S.C. _____________________________________________________________________ AUSTON TRANSFER & PROCESSING, LLC and AUSTON CONTRACTING, INC. Plaintiffs v.

SHREDDERHOTLINE.COM and DAN SCOTT BURDA Defendants _____________________________________________________________________ JUDGMENT _____________________________________________________________________ OVERVIEW ............................................................................................................................... 2 ANALYSIS ................................................................................................................................. 2 1.

Did the Defendants Acquiesce to the Application? ..................................................... 3 1.1 Facts Relevant to the Issue ...................................................................................... 3 1.2 Discussion ................................................................................................................... 7 2.

Should the Application be Granted Given the Substantive Requirements of the C.C.Q.? 8 2.1 Positions of the Parties ............................................................................................. 8 2.2 Discussion ................................................................................................................... 8 2.2.1 The U.S. Court Did have Jurisdiction Under

Article 3168 C.C.Q. (art. 3155(1) C.C.Q.) 12 2.2.2 The U.S. Judgment is Final and Enforceable (art. 3155(2) C.C.Q.) ........ 13 2.2.3 The U.S. Judgment was not Rendered in Contravention of the Fundamental Principles of Procedure (art. 3155(3) C.C.Q.) ........................................................... 14 2.2.4 There is no Substantially Similar Dispute Pending Before the Quebec Courts (art. 3155(4) C.C.Q.) .............................................................................................................. 17 2.2.5 The Outcome of the U.S.

Judgment is not Manifestly Inconsistent with Public Order as Understood in International Relations (art. 3155(5) C.C.Q.) ............................. 17 2.2.6 The U.S. Judgment Does not Enforce Obligations Arising from the Taxation Laws of a Foreign State (art. 3155(6) C.C.Q.) ......................................................................... 18 2.2.7 The U.S. Judgment was Properly Served on the Defendants (art. 3156 C.C.Q.) 18 2.2.8 Other Issues Raised by Mr. Burda ................................................................ 19 3.

Should the Application be Granted Given the Procedural Requirements of the C.C.P.? 19 4. Amount of the U.S. Judgment in Canadian Dollars .................................................. 21 FOR THESE REASONS, THE COURT: ................................................................................ 21

OVERVIEW [ 1 ] Shredderhotline.com purported to sell an industrial tire shredder to Auston Transfer & Processing, LLC and Auston Contracting, Inc. (collectively, “ Auston ”). At the time of the purported sale, Shredderhotline.com was a registered Illinois corporation with its head office in that state. Auston alleges Shredderhotline.com and its registered agent, Dan Scott Burda, made false and misleading representations regarding the shredder and instituted legal proceedings in the United States District Court.

Alleging the Defendants had failed to answer the summons or respond in any way, Auston brought a motion for a default judgment. A default judgment order was issued by the United States District Court shortly thereafter. [ 2 ] As Mr. Burda is currently a resident of Quebec, Auston has filed an originating application with this Court to have it recognize and enforce the default judgment order rendered in the United States. Shredderhotline.com did not retain counsel to make any representations on its behalf at the hearing. [1] Mr.

Burda did make representations on his own behalf, however, and contested Auston’s application. ANALYSIS [ 3 ] This case gives rise to four issues: 1. Did the Defendents acquiesce to Auston’s application? 2. Should Auston’s application be granted given the substantive requirements of the Civil Code of Quebec (“ C.C.Q. ”)? 3. Should Auston’s application be granted given the procedural requirements of the Code of Civil Procedure (“ C.C.P. ”)? 4.

If the answer to issues 2 and 3 is “yes”, what is the amount of the foreign award when converted into Canadian dollars? [2] [ 4 ] For the following reasons, the Court concludes that: 1. Because the acquiescence is not clearly made on behalf of both Defendants, the recognition and enforcement of a foreign decision has public order implications, and there is a risk of conflicting judgments, it is necessary to proceed with an analysis of the applicable substantive and procedural requirements; 2. The substantive requirements of the C.C.Q. are met; 3.

The procedural requirements of the C.C.P. are also met, so that the default judgment order rendered by the United States District Court should be recognized and enforced; and 4. When converted into Canadian dollars, the combined amount of the foreign award is $ 2,632,263.66. 1. Did the Defendants Acquiesce to the Application? 1.1 Facts Relevant to the Issue [ 5 ] On December 30, 2019, Auston filed a complaint against the Defendants (the “ U.S. Complaint ”). According to the first paragraph of the U.S. Complaint: [3] NATURE OF THE ACTION 1.

This case involves the breach of an agreement by [the Defendants] to sell and deliver an Eidal Shredder 7272 with conveyor system which is an industrial tire shredder, to Plaintiffs […] for use in their scrap tire processing and recycling business, as well as Defendants […] obtaining payment by wire transfer of $280,000.00 [USD] for the purported Eidal Shredder 7272 by false and misleading representations when they either knew that they did not have the shredder, knew they were not able to sell or deliver the shredder to the [Plaintiffs] or never intended to deliver it. […] [ 6 ] The U.S.

Complaint further states why it was brought in the United States District Court, Northern District of Illinois, Eastern Division (the “ U.S. Court ”): [4] JURISDICTION 6. […] The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because it includes claims of violation of the Racketeer Influencer and Corrupt Organizations Act (RICO) Act, 18 U.S.C. §§ 1961-1968. 7.

The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332 because the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of Illinois and Maryland. 8. The Court has personal jurisdiction over Shredderhotline.com Company by virtue of it being a registered Illinois corporation with its principal place of business in Illinois, and its commission of wrongful acts within the state of Illinois. 9. The Court has personal jurisdiction over BURDA, on information and belief, by virtue of his commission of wrongful acts within

the State of Illinois and also his having been domiciled in Streator, Illinois, his transaction of his affairs in Illinois, and his identification of himself as the Illinois registered agent of Shredderhotline.com Company. VENUE 10. Venue is proper in this judicial district pursuant to 28 U.S.C. § 139 (

b) and (

c) and pursuant to 18 U.S.C. § 1965 because, on information and belief, Shredderhotline.com Company has its principal place of business in this district, transacts business in this district, and a substantial portion of the events giving rise to the asserted claims have occurred, and continue to occur, in this district, BURDA is listed as the President and registered agent of Shredderhotline.com Company with an address in the district, he transacts business in this district and a substantial portion of the events giving rise to the asserted claims have occurred and continue to occur in this district.

Venue is also propre in this judicial district pursuant to 18 U.S.C. § 1965. […] [Underlining added] [ 7 ] On January 12, 2021, Auston filed a Motion for Judgment by Default and asked the U.S.

Court to enter a default judgment against the Defendants for their “failure to appear and plead or otherwise defend in a timely manner.” [5] Indeed, as Auston further alleged, “[n]o appearance or responsive pleading has to date been filed by [the Defendants] and the time required for Defendants to appear and file responsive pleadings pursuant to Rule 12 of the Federal Rules of Civil Procedure has expired.” [6] This motion was supported, among other things, by an affidavit sworn by Mr. John O’Leary, U.S. counsel for Auston. [ 8 ] Eight days later, on January 20, 2021, the U.S.

Court rendered a Default Judgment Order (the “ U.S. Judgment ”). According to the U.S. Judgment: [7] 1. Plaintiffs commenced this action against Defendants […] by filing their Complaint pursuant to 18 U.S.C.A. § 1962 in Count 1 for Violation of Racketeer Influenced and Corrupt Organizations (RICO) Act, for Breach of Contract in Count II, and pursuant to 815 ILCS 505/1ff in Count III for Violation of the Illinois Deceptive Business Practices Act […] on December 30, 2019. 2. Summons was issued on Defendant[s] […] on January 8, 2020. 3.

The Complaint and Summons in this action were properly served on Defendant, SHREDDERHOTLINE.COM COMPANY, pursuant to the Illinois Business Corporations Act, 805 ILCS 5/5.25, on March 26, 2020 served summons and complaint upon the Illinois Secretary of State. 4. The Complaint and Summons in this action were properly served on Defendant, DAN SCOTT BURDA on July 15, 2020 […] pursuant to Rule 4(

f) of the Federal Rules of Civil Procedure and in accordance with the provisions of

Article 10 of the Hague Service Convention. 5. The time for the defendants to file an appearance, answer, plead, defend or otherwise move in response to the Complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure has expired. 6. On January 13, 2021, the Plaintiffs filed the Motion and mailed a copy to the Defendants along with the Notice of Hearing on the Motion. CONCLUSIONS OF LAW 7. The Complaint, Summons and Motion were properly served on the Defendants. 8.

The Defendants are in default, the Plaintiffs […] are entitled to judgment on the Complaint as requested in the Motion, and the Motion is granted. Accordingly, it is ORDERED, ADJUDGED, AND DECREED that judgment is hereby entered in favor of Plaintiffs […] against Defendant[s] […]. 1. Judgment is entered against Defendant[s] […] in Count I in the amount of $879,745.26 plus reasonable attorneys’ fees and paralegal fees and costs in the amount of $13,557.70 for a total judgment on Count I in the amount of $893,302.96. 2.

Judgment is entered against Defendant SHREDDERHORLINE.COM COMPANY in Count II in the amount of $293,248.42 plus costs. 3.

Judgment is entered against Defendants […] in Count III in the amount of $293,248.42 in compensatory damages, plus reasonable attorneys’ fees and paralegal fees and costs in the amount of $13,557.70 plus punitive damages in the sum of $586,496.84 for a total judgment on Count III in the amount of $893,302.96. [Underlining added] [ 9 ] On August 4, 2021, Auston served an Originating Application in Recognition and Enforcement of a Foreign Judgment (the “ Application in Recognition and Enforcement ”) on the Defendants.

This application, which was amended on June 7, 2022 and re- amended on September 30, 2023, alleges: 15. […] [The U.S. Judgment] was rendered by default and the Complaint was regularly served on the Defendants pursuant to the laws of Illinois […]; 16. On July 15, 2020, in accordance with

article 10b) of the Convention of November 15, 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, the Defendants were served in Quebec […];

17. The Plaintiffs are within their rights to request that this judgment rendered in Chicago (Illinois, United States of America) be recognized and enforced in Quebec; 18. Pursuant to

article 13 of the Currency Act and

article 3161, judgments must be rendered in Canadian currency at the rate of exchange prevailing on the day the decision become enforceable at the place it was renered; 19. (…) 20. As of January 20, 2021, the judgment condemning the Defendants for the sum of $2,079,854.34 USD corresponded to $2,632,263.65 CAD […] the particulars of which are as follows: (

a) In Count I, the amount of $893,302.96 USD against Shredderhotline.com and Dan Scott Burda corresponded to $1,130,564.23 CAD […]; (

b) In Count II, the amount of $293,248.42 USD against Shredderhotline.com corresponded to $371,135.20 CAD […]; (

c) In Count III, the amount of $893,302.96 USD against Shredderhotline.com and Dan Scott Burda corresponded to $1,130,564.23 CAD […]; [Underlining in original] [ 10 ] On May 26, 2023, defence counsel notified and filed an unqualified acquiescence pursuant to

article 217 C.C.P. (the “ Acquiescence ”). [8] [ 11 ] A hearing on the Application in Recognition and Enforcement was held on September 15, 2023. Shredderhotline.com was unrepresented by counsel and Mr. Burda was self-represented. [ 12 ] On September 18, 2023, Mr. Burda sent the following e-mail to the Court: SWORN STATEMENT OF DAN BURDA i kindly request that the Plaintiffs provide “Iron Clad” proof, that is not falsified documents, that would confirm that a physical service of Dan Burda was not made until long after the judgment was rendered in the US Courts.

As i firmly swear and confirm that i ( Dan Burda ) was not properly served under the Laws of the United States.

During that entire time i resided at [...] in Mont-Royal Quebec [...] At no time was i in the United States during this entire litigation period to be able to accept personal service As we all know Shredderhotlline was electronically served during new covid rules. [ 13 ] No original or electronic copy of these assertions, duly sworn before a commissioner of oaths, was subsequently communicated. 1.2 Discussion [ 14 ] Little was said during the hearing as to the precise scope and legal consequences of the Acquiescence, which states: “[ l]a

partie défenderesse Dan Scott Burda acquiesce sans reserve à la demande des parties demanderesses et en avise Me Souhail Nejjar, avocat des parties demanderesses.” [9] [ 15 ] The Acquiescence – executed electronically by Mr. Burda and defence counsel – clearly affirms that Mr. Burda acquiesces to the Application on an unqualified basis.

It is unclear, however, whether he also acquiesces on behalf of the other Defendant, Shredderhotline.com, in his capacity as its representative. [ 16 ] Likewise, defence counsel’s e-mail to the Court merely suggests, without explicitly affirming, that the Acquiescence is on behalf of both Defendants: [10] Nous voulions simplement vous informer que nos instructions ont changé et que nous notifierons et produiron[s] dans les prochaines minutes un acte d’acquiescement sans réserve à la demande.

Ainsi, l’audition de lundi ne sera pas nécessaire, outre les formalités nécessaires à la mise en œuvre de l’acte d’acquiescement. [ 17 ] Given the ambiguity of the Acquiescence, Mr. Burda’s e-mail of September 18, 2023, the public order implications of an application to recognize and enforce a foreign decision, and the risk of conflicting judgments, [11] the Court concludes it should proceed with an analysis of the relevant substantive and procedural requirements and render a uniform judgment. 2.

Should the Application be Granted Given the Substantive Requirements of the C.C.Q.? 2.1 Positions of the Parties [ 18 ] Auston submits the substantive and procedural requirements for the recognition and enforcement of the U.S. Judgment are met.

[ 19 ] Despite the Acquiescence and his inability to plead on behalf of Shredderhotline.com, Mr. Burda none the less contests the Application. According to Mr. Burda, he is a 70-year-old who has been making shredders since 1972. He submits he was made aware of the U.S. litigation during the Covid-19 pandemic, when Shredderhotline.com was shut down. Mr. Burda asserts he has no assets and that nothing is being hidden. He asserts the first month of the project with Auston was “cherry picked” by the latter and that two years of documentation are missing from the Quebec file. Notably, Mr.

Burda admits Shredderhotline.com was properly served with the U.S. Complaint. 2.2 Discussion [ 20 ] When deciding whether to recognize and enforce a foreign judgment, a court must consider

article 3155 C.C.Q. According to this article, a court will recognize and enforce a foreign judgment unless it determines one or more of six non-cumulative exceptions apply: 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. [Underlining added] [ 21 ]

Article 3156 C.C.Q. further provides that if the decision rendered by the foreign authority is a default judgment, it must have been properly served on the party against whom the application for recognition and enforcement was brought: 3156. A decision rendered by default may not be recognized or declared enforceable unless the plaintiff proves that the act instituting the proceedings was duly served on the defaulting party in accordance with the law of the place where the decision was rendered.

However, the authority may refuse recognition or enforcement if the defaulting party proves that, owing to the circumstances, he was unable to acquaint himself with the act instituting the proceedings or was not given sufficient time to offer his defence. [Underlining added] [ 22 ] Finally, in assessing whether a foreign authority has jurisdiction,

article 3168 C.C.Q. enumerates a list of non-cumulative conditions that must also be considered: 3168.

In personal actions of a patrimonial nature, the jurisdiction of foreign authorities is recognized only in the following cases: (1) the defendant was domiciled in the State where the decision was rendered; (2) the defendant possessed an establishment in the State where the decision was rendered and the dispute relates to its activities in that State; (3) injury was suffered in the State where the decision was rendered and it resulted from a fault which was committed in that State or from an injurious act or omission which occurred there; (4) the obligations arising from a contract were to be performed in that State; (5) the parties have submitted to the foreign authorities the present or future disputes between themselves arising out of a specific legal relationship; however, renunciation by a consumer or a worker of the jurisdiction of the authority of his place of domicile may not be set up against him; (6) the defendant has submitted to the jurisdiction of the foreign authorities. [ 23 ] Because the U.S.

Judgement is “a decision rendered by default,” each of these three articles is relevant to the Court’s analysis. [ 24 ] As noted by the Supreme Court of Canada in Barer v. Knight Brothers LLC ,

article 3155 C.C.Q. enunciates the general principle that the foreign decision will generally be recognized in Quebec. Nevertheless, the applicant bears the onus of demonstrating that it is final and enforceable (exception 2). In instances where, as here, the foreign decision is a judgment by default, the applicant also bears the onus of establishing that it was not rendered in contravention of the fundamental principles of procedure (exception 3): [12] In accordance with the aim of facilitating the free flow of international trade, art. 3155 C.C.Q. establishes the principle that a decision rendered outside Quebec will generally be recognized and declared enforceable in the province.

Article 3155 C.C.Q. then lists six exceptions that allow Quebec courts to depart from that general principle and refuse to recognize a foreign decision. The first of these exceptions concerns decisions rendered by an authority that had no jurisdiction over the dispute under the Civil Code […].

The framework established by art. 3155 C.C.Q. has been described as creating a presumption of validity in favour of the foreign decision, a presumption that is rebutted when a Quebec court holds that one of the listed exceptions applies. One would expect the onus to be on the party opposing recognition to displace this presumption of validity of the foreign decision and to establish one of the grounds for denying recognition or enforcement […].

Under the general rule governing the allocation of the burden of proof between parties found in art. 2803 C.C.Q., “a person seeking to assert a right shall prove the facts on which the claim is based”, while a person who argues that a right is null, modified or extinguished bears the burden of proving the facts underlying that position. The burden of proving that an exception applies thus normally falls on the party seeking to rely on the exception. Still, some legislative provisions impose that onus of proof on the party seeking recognition of a foreign decision.

One example is art. 786 para. 1 of the […] current Code of Civil Procedure […]. It requires the party seeking recognition to attach to the application “an attestation emanating from a competent foreign public officer stating that the decision is no longer, in the State in which it was rendered, subject to ordinary remedy and that it is final or enforceable”. The party seeking recognition thus bears the burden of establishing — in the manner prescribed — that the foreign decision is final or enforceable, and therefore, that the second exception found in art. 3155 C.C.Q. does not apply.

Similarly, where a foreign decision is rendered by default, art. 3156 C.C.Q. requires the party seeking recognition to establish that the third exception in art. 3155 C.C.Q. does not apply. [Underlining added; references omitted] [ 25 ] Moreover, for a court to recognize a foreign judgment, it must first be satisfied that the foreign authority has jurisdiction under

article 3168 C.C.Q. Such jurisdiction is a condition precedent that necessarily frontends the analysis prescribed by

article 3155 C.C.Q.: [13] […] Any tension between arts. 3155 and 3168 C.C.Q. dissipates when one considers that the foreign authority’s jurisdiction is one of the facts on which an applicant’s claim is based. Indeed, a party seeking recognition of a foreign decision has no right arising from that decision in Quebec unless the foreign authority had jurisdiction pursuant to the rules of the Civil Code . The indirect international jurisdiction of a foreign authority is therefore best conceptualized as a precondition to the recognition of its decision.

A finding of foreign jurisdiction logically precedes a finding that a foreign judgment is enforceable in Quebec. As Professor Emanuelli puts it: [translation] “[f]or a foreign decision to be recognized in Quebec and to be capable of being declared enforceable in the province, it must have been rendered by an authority that had jurisdiction under the Quebec rules on the international jurisdiction of foreign authorities. This is what emerges, a contrario , from article 3155(1) C.C.Q.”. In Worthington Corp. v.

Atlas Turner inc. , the Quebec Court of Appeal also opined that [translation] “foreign judgments are recognized in Quebec if they were rendered by a court that had jurisdiction under the Civil Code ’s provisions on private international law. Articles 3155 and 3164 state this expressly”. [Underlining added; references omitted] [ 26 ] The Court will now consider the exceptions of

article 3155 C.C.Q., as well as the requirements of articles 3168 and 3156 C.C.Q., with a view to the relevant facts and evidence. 2.2.1 The U.S. Court Did have Jurisdiction Under

Article 3168 C.C.Q. (art. 3155(1) C.C.Q.) [ 27 ] When deciding whether Auston has established that the U.S. Court had jurisdiction – such that the exception in article 3155(1) C.C.Q. does not apply – it is necessary to determine whether at least one of the six conditions of

article 3168 C.C.Q. is met. According to the first of these conditions, “[i]n personal actions of a patrimonial nature, the jurisdiction of foreign authorities is recognized only in the following cases: (1) the defendant was domiciled in the State where the decision was rendered […].” The jurisdiction of foreign authorities is also recognized if “(2) the defendant possessed an establishment in the State where the decision was rendered and the dispute relates to its activities in that State […].” [ 28 ] According to the U.S. Complaint, the U.S.

Court has jurisdiction because “Shredderhotline.com Company has its principal place of business in this district, transacts business in this district, and a substantial portion of the events giving rise to the asserted claims have occurred, and continue to occur, in this district.” [14] Likewise, “BURDA is listed as the President and registered agent of Shredderhotline.com Company with an address in the district, he transacts business in this district and a substantial portion of the events giving rise to the asserted claims have occurred and continue to occur in this district.” [15] [ 29 ] These allegations are supported by the affidavit of Nick Hardy, an employee of Elite Process Serving and Investigations, Inc.: [16] 2 […] On February1, 2020 I attempted to serve Dan Scott Burda individually and as Registered Agent of Shredderhotline.com Company at 1215 North Bloomington Street, Streator, IL 61364 with Alias Summons and Complaint in the above captioned Civil Case. 3 Dan Scott Burda is the Illinois Registered Agent of Shredderhotline.com Company according to the Illinois Secretary of State Corporation File Detail Report and his address as the Registered Agent is 1215 North Bloomington Street, Streator, IL 61364 according to the Illinois Secretary of State Corporation File Detail Report . […] [Underlining added] [ 30 ] The allegations of the U.S.

Claim are also supported by the Shredderhotline.com website, which indicates the company’s U.S. offices and headquarters are located at 61364 Streator, Chicago, Illinois. [17] This is the same address specified in the U.S. Complaint, the affidavit of Mr. Hardy, and the U.S. Judgment. [ 31 ] Furthermore, according to the Corporate File Detail Report of the Office of the Secretary of State Jesse White of the State of Illinois (the “ U.S. Corporate Report ”), as of 2020, Shredderhotline.com is identified as a corporation incorporated in Illinois. [18] The U.S. Corporate Report also identifies Mr.

Burda as the agent, president, and secretary of Shedderhotline.com with an address at 1215 N.

Bloomington Street, Streator, Illinois, 61364. Again, this is the same address specified in the U.S. Complaint, the affidavit of Mr. Hardy, the U.S. Judgment, and the website of Shredderhotline.com. [ 32 ] Cumulatively, these allegations, affidavits, and public documents establish, on a balance of probabilities, that the Defendants were either domiciled in Illinois when the U.S. Complaint was instituted or, at the very least, possessed a residence in Illinois and that the dispute related to their activities in Illinois. 2.2.2 The U.S.

Judgment is Final and Enforceable (art. 3155(2) C.C.Q.) [ 33 ] Regarding the finality and enforceability of the U.S. Judgment, Auston filed a sworn declaration by Mr. O’Leary, its U.S. counsel. According to this declaration: [19] 8. Pursuant to the law in United States District Court, federal Rule of Appellate Procedure, Rule 4 […], the deadline to appeal a judgment is within thirty (30) days after entry of the judgment entered on January 20, 2021, which time expired on February 20, 2021; 9. Moreover, under the U.S.

Federal Court rules, Federal Rules of Civil Procedure, Rule 60 […], a person against whom a judgment is rendered can file a motion for relief from a judgment order including a judgment by default , on certain grounds such as mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud or a claim that the judgment is void and other reasons that might justify relief, within a reasonable time but no more than a year after the entry of the judgment for any reason that might justify relief; 10.

The Defendants did not file any motion for relief of the [U.S.] Judgment; 11. [T]he [U.S.] Judgment was not appealed, is no longer appealable and is therefore final and enforceable; [Underlining added] [ 34 ] The Court concludes this uncontradicted affidavit by a legal officer [20] establishes, on a balance of probabilities, that the U.S. Judgment is indeed final and enforceable within the meaning of article 3155(2) C.C.Q. 2.2.3 The U.S. Judgment was not Rendered in Contravention of the Fundamental Principles of Procedure (art. 3155(3) C.C.Q.) [ 35 ] In La réforme du Code Civil , authors J. A. Talpis and J.-G.

Castel provide the following insights into the notion of “fundamental principles of procedure:” [21]

Le paragraphe 3 [de l’

article 3155 du Code Civil du Québec ] n’indique pas s’il s’agit des principes essentiels de la procédure en vigueur au lieu où la décision a été rendue au Québec. D’après les débats en Sous-commission parlementaire, il faudrait tenir compte des principes essentiels de la procédure universellement reconnus, notamment que le défendeur n’avait pas eu la possibilité d’être représenté ou de faire valoir tous ses moyens car il n’avait pas reçu la signification en temps utile. De même, si le débiteur canadien n’avait pas pu se défendre à l’étranger car il n’avait pas eu accès à des documents protégés par la

Loi sur les dossiers d’entreprise , ou si le tribunal étranger avait refusé de permettre le témoignage en français avec l’aide d’un interprète, ce jugement ne sera pas reconnu au Québec. [Underlining added] [ 36 ] More recently, in Canada Post Corp. v. Lépine , [22] the Supreme Court of Canada stated, in the context of a class action, that the fundamental principles of procedure had been infringed by the Ontario court when it failed to safeguard the interests of Quebec members.

According to the Supreme Court, “[t]he judge hearing the application [for recognition and enforcement of a foreign decision] is concerned not only with the procedure prior to the judgment but also with the procedural consequences of the judgment.” [23] [ 37 ] Droit de la famille – 08689 provides an example of an infringement of fundamental principles of procedure. In this case, a foreign judgment was obtained based on demonstrably false information: [24] La règle édictée à l'

article 3155 C.c.Q. limite les cas où le juge peut refuser de reconnaître toute décision rendue hors du Québec. En l'espèce, le juge de première instance a conclu que la décision avait été rendue en violation des principes essentiels à la procédure. Cette conclusion prend essentiellement appui dans les circonstances entourant l'assignation de l'intimée devant le tribunal du [Pays A]. Selon la preuve que le juge de première instance retient, l'intimée fut dûment convoquée à une audition devant le tribunal du [Pays A]. Il s'agissait d'une troisième convocation. L'intimée s'était présentée aux deux premières.

Elle ne se présente pas à la troisième puisque, entre-temps, les parties se sont réconciliées et l'appelant l'a convaincue qu'il serait dans l'intérêt de la famille de déménager au Canada. Lorsque l'appelant se présente au tribunal du [Pays A] en présence de son avocat, le 4 octobre 1995, ce dernier informe le tribunal que l'intimée a quitté le pays pour le Canada. Ceci est faux. Qui plus est, pour fins d'exemplification, l'appelant signifie le jugement de divorce [au Pays B] alors qu'il sait que l'intimée réside au Canada avec ses enfants.

Dès que la famille fut installée au Canada, l'appelant ira habiter le [Pays C] sur une base permanente avec sa maîtresse. De fait, l'appelant sauf pour un court séjour n'a jamais résidé au Canada. Le juge de la Cour supérieure retient que le jugement irrévocable de divorce du [Pays A] fut obtenu à la suite d'un stratagème de l'appelant qui a menti au tribunal étranger et qui a manœuvré de façon à empêcher l'intimée de faire valoir ses droits.

Sur cette première question, la Cour est d’avis que le juge de la Cour supérieure s’est bien dirigé en droit et que son analyse des faits et des inférences qu’il en tire sont exempts de toute erreur révisable.

[Underlining added] [ 38 ] Here, consistent with the case protocol and the request for setting down for trial and judgment, [25] Mr. Burda raised the issue of insufficient or defective service, both orally and in his e-mail of September 18, 2023. According to him, he was not properly advised of the U.S. Complaint given the restrictions/difficulties imposed by Covid-19 and the fact he had moved to Quebec. Yet these assertions are contradicted by the Motion for Judgment by Default [26] and two affidavits sworn by Mr. O’Leary. The first affidavit states: [27] 4. The [U.S.] Complaints and Summons in this action were served on the Defendant, SHREDDERHOTLINE.COM COMPANY on June 2, 2020 pursuant to

Section 5.25 of the Illinois Business Corporation Act. 5. The Complaint and Summons in this action were served on the Defendant, DAN SCOTT BURDA on July 15, 2020 in Mont- Royal, Canada pursuant to Rule 4(

f) of the Federal Rules of Civil Procedure and in accordance with the provisions of the Hague Convention . [Underlining added] [ 39 ] Similarly, the second affidavit states: [28] 5. The Complaint was duly served on Defendant, Shredderhorline.com by serving it upon the Illinois Secretary of State , the statutorily appointed agent under 805 ILCS,

Section 5/5.25(

b) and (c) […] on June 2, 2020 and on June 20, 2020 at the registered office of Shredderhotline.com at the address 1215 N Bloomington St Streator, Illinois, 61364; via prepaid certified mail pursuant to Federal Rules of Civil Procedure (Rule 4(h)(B)) […]; 6. Considering the Defendant Shredderhortline.com did not maintain a registered agent in the State of Illinois […], the [U.S.] Complaint was served, pursuant to 805 ILCS,

Section 5/5.25(c) […], upon the Illinois Secretary of State; 7. The Complaint was duly served on Defendant Dan Scott Burda personally and as the registered agent of Shredderhotline.com on July 15, 2020, at the following email addresses used by Dan Scott Burda in his correspondence with the undersigned and plaintiffs’ representatives […], pursuant to Federal Rules of Civil Procedure, Rule 4(f)(1); [Underlining added] [ 40 ] These affidavits are corroborated by certificates of service. [29] [ 41 ] Despite service of the U.S. Complaint, neither Shredderhotline.com nor Mr.

Burda “filed an appearance and each […] failed to file an answer, plead, defend or otherwise move in response to [the proceeding] […].” [30] It was for this reason that the Motion for Judgment by default was granted by the U.S. Court. Moreover, neither Shredderhotline.com nor Mr. Burda filed “any motion for relief of the [U.S.] Judgment” after it was issued. [31] [ 42 ] A preponderance of evidence establishes that: (

i) the U.S. Complaint was properly served upon the Defendants; (ii) they nevertheless failed to respond to the U.S. Complaint; and (iii) the U.S. Judgment was not based on any erroneous or incomplete information. There is also no evidence the measures taken by Auston to serve the Defendants infringed any requirement imposed by authorities during the Covid-19 pandemic or the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. In addition, Mr.

Burda admitted in his oral submissions that Shredderhotline.com was properly served and it can be inferred from the Acquiescence that he was as well. As for Mr. Burda’s e-mail of September 18, 2023, it is untimely, not an affidavit within the meaning of

article 105 C.C.P., and inadmissible. [ 43 ] Consequently, the Court finds the U.S. Judgment does not contravene the fundamental principles of procedure. 2.2.4 There is no Substantially Similar Dispute Pending Before the Quebec Courts (art. 3155(4) C.C.Q.) [ 44 ] As there is no evidence that a substantially similar dispute between the parties is currently pending before the Quebec courts, the exception of article 3155(4) C.C.Q. does not apply. 2.2.5 The Outcome of the U.S.

Judgment is not Manifestly Inconsistent with Public Order as Understood in International Relations (art. 3155(5) C.C.Q.) [ 45 ] The notion of public order as it is used by the legislature in article 3155(5) C.C.Q. is explained by authors Talpis and Castel as follows: [32]

Le paragraphe 5 consacré à l’ordre public fait le pendant de l’article 3081 qui traite de l’ordre public dans les conflits de lois. Vu les articles 3155, alinéa 3 et 3156, il s’agit de la conformité de la décision étrangère qui n’est pas conforme à une loi québécoise d’application nécessaire. [Underlining added] [ 46 ] According to

article 3081 C.C.Q., “[t]he provisions of the law of a foreign State do not apply if their application would be manifestly inconsistent with public order as understood in international relations.” In R.S. v. P.R. , the Supreme Court of Canada observes that courts play a limited role when it comes to applying the exception of article 3155(5) C.C.Q. They are not called upon to weigh in on the substance of the law of the foreign jurisdiction, but rather on the consistency of the outcome of the foreign decision with the underlying values of the Quebec legal system: [33]

It is clear from this provision that what must be analyzed is the outcome of the foreign decision, not the laws of the foreign jurisdiction . And

article 3081 C.C.Q. is consistent with this. The purpose is not to instruct the foreign authorities in their own law. The Quebec court’s role is limited to ensuring that a foreign decision is not enforced if the decision’s outcome would be so inconsistent with certain of the underlying values of the Quebec legal system as to be incapable of being incorporated into it . In my opinion, therefore, it is inappropriate to see art. 3155(5) C.C.Q. as requiring that the court consider the merits of the decision or of the foreign law.

To conclude otherwise is inconsistent not only with the words of arts. 3155(5) and 3081 C.C.Q., but also with those of art. 3158 C.C.Q., which expressly bars Quebec authorities from “considering the merits of the decision” at issue in an enforcement proceeding. In sum, the requirement of consistency with public order simply means that the court must ensure that the solution provided by the foreign judgment can be harmoniously incorporated into the legal order of the Quebec forum […]. This leads me to a second point.

Public order as understood in international relations is generally more limited than its domestic law counterpart. The reason for this lies in a desire to apply Quebec rules of conflict that allow for the application of a foreign law under certain conditions even if that law is inconsistent with Quebec law. But such inconsistencies have limits. Thus, a foreign decision will not be recognized if its outcome runs counter to the moral, social, economic or even political conceptions that underpin Quebec’s legal order.

Such a divergence must be serious, and it must be assessed in concrete terms in order to determine whether the incorporation of the outcome in question into Quebec’s legal order does in fact give rise to that conflict of conceptions. [Underlining added; references omitted] [ 47 ] There is no evidence or indication the U.S. Judgment runs counter to the moral, social, economic, or political conceptions that underpin the Quebec legal order. On the contrary, the U.S. Complaint is an action in breach of contract brought pursuant to the laws of the jurisdiction in which the Defendants were domiciled or residing.

Having failed to respond to the U.S. Complaint, default proceedings were brought, and a default judgment rendered by a court of this same jurisdiction. The U.S. Judgment can thus be harmoniously incorporated into the Quebec legal order. Indeed,

article 145 C.C.P. provides that: “[t]he defendant must answer the application within the following 15 days, failing which a default judgment may be rendered and the legal costs awarded against the defendant ” (underlining added). 2.2.6 The U.S. Judgment Does not Enforce Obligations Arising from the Taxation Laws of a Foreign State (art. 3155(6) C.C.Q.) [ 48 ] On its face, the U.S. Judgment does not “enforce obligations arising from the taxation laws of a foreign State.” It follows that the exception of article 3155(6) C.C.Q. does not apply. 2.2.7 The U.S.

Judgment was Properly Served on the Defendants (art. 3156 C.C.Q.) [ 49 ] For the reasons elaborated in subsection 2.2.3 of this judgment regarding the fundamental principles of procedure, the Court concludes the U.S. Judgment was properly served on Shredderhotline.com and Mr. Burda within the meaning of

article 3156 C.C.Q. 2.2.8 Other Issues Raised by Mr. Burda [ 50 ] As for the other issues raised by Mr. Burda in his oral submissions, the Court is of the view that they relate to the merits of the U.S. dispute. An analysis under articles 3155 and 3156 C.C.Q. does not constitute a retrial or an appeal of the foreign decision – it is a much more focused exercise. In any event, the combined effect of the Acquiescence and article 87(3) C.C.P. are such that very little weight, if any, should be given to Mr.

Burda’s submissions, as he is essentially foreclosed from making representations either about himself or Shredderhotline.com. 3. Should the Application be Granted Given the Procedural Requirements of the C.C.P.? [ 51 ] In addition to the substantive requirements of articles 3155, 3168, and 3156 C.C.Q., the Court must also consider

article 508 C.C.P.: 508. A party seeking the recognition or the enforcement of a foreign decision attaches the decision to the application, together with a certificate from a competent foreign public official stating that the decision is no longer appealable in the State in which it was rendered or that it is final or enforceable. If the decision was rendered by default, certified documents showing that the originating application was properly notified to the defaulting party must also be attached to the application.

Documents in a language other than French or English must be accompanied by a translation certified in Québec. The translation must be in French if the party seeking the recognition or the enforcement of the foreign decision is a legal person. [Underlining added] [ 52 ] Regarding the first paragraph of

article 508 C.C.P., to obtain the recognition or enforcement of the U.S. Judgment Auston had to attach it to the Application, as well as a certificate from a competent public official that the U.S. Judgment is no longer appealable in Illinois or that it is final and enforceable. [ 53 ] While the U.S. Judgment was attached as an exhibit to the Application and served on Shedderhotline.com and Mr. Burda, [34]

no certificate from a foreign public official was attached. Rather, Auston had its U.S. counsel swear an affidavit in which he affirmed that the U.S. Judgment was unappealable, final, and enforceable. [35] [ 54 ] Is this affidavit sufficient to satisfy the procedural requirements of

article 508 C.C.P.? [ 55 ] In Goldberg c. Think Glass Le verre repensé inc ., [36] this Court addressed a similar issue. It concluded that although the case law remains unsettled, a certificate from a competent public official will not be necessary if the evidence shows the foreign proceeding was not contested and the foreign decision was left undisturbed: [37] Selon le Tribunal, la question est de déterminer si l'avocat ayant agi pour le demandeur aux États-Unis constitue un officier public étranger compétent.

Selon les auteurs Ferland et Emery, l’attestation d’un avocat peut ne pas être suffisante pour établir le caractère définitif et exécutoire d’un jugement. Cependant, il ne s’agit pas d’une exigence absolue qui puisse faire obstacle à la reconnaissance d’un jugement étranger. […] L’avocat du demandeur a soutenu à l’audience que l’affidavit P-6 rencontre les exigences de l’article 508 C.p.c. Certaines décisions appuient l’argument d’autres ont soutenu le contraire. Dans le cas sous étude, rien n’indique que le jugement dont on demande la reconnaissance n’est pas final.

On comprend que ce dernier était appelable, mais la preuve au dossier ne permet pas de soutenir qu’un tel appel ait été logé ni qu’une requête en rétractation de jugement a été entreprise. Selon la preuve au dossier, la réclamation n’a pas été contestée et le jugement n’a pas été attaqué. La seule contestation du jugement a été formulée dans le cadre de la présente requête.

Dans ce cas, le Tribunal conclut que l’attestation fournie par la pièce P-6 est suffisante et que le demandeur a établi que le jugement est final et exécutoire. [Underlining added; references omitted] [ 56 ] This reasoning was confirmed by the Court of Appeal, which stated: “[t]he trial judge was correctly of the view that the certificate spoken [of] in

article 508 C.C.P. is not an absolute requirement for establishing the finality of the foreign judgment .” [38] [ 57 ] Here, the affidavit of Mr. O’Leary – and the absence of any evidence that Shreddorhotline.com and/or Mr. Burda attempted to contest or respond to the U.S. Complaint or attempted to obtain relief from or appeal the U.S. Judgment – establish, on a balance of probabilities, that the U.S. Judgment is unappealable, final, and executory. 4. Amount of the U.S. Judgment in Canadian Dollars [ 58 ] According to the currency convertor of the Bank of Canada, the total amount of the awards granted by the U.S.

Judgment, namely USD 2,079,854.34, represent 2,632,263.66 in Canadian dollars (“ CAD ”). More specifically: [39] • In Count I, the award of USD 893,302.96 corresponds to CAD 1,130,564.23; • In Count II, the award of USD 293,248.42 corresponds to CAD 371,135.20; and • In Count III, the award of USD 893,302.96 corresponds to CAD 1,130,564.23. FOR THESE REASONS, THE COURT: [ 59 ] GRANTS the Re-Amended Originating Application in Recognition and Enforcement of a Foreign Judgment; [ 60 ] ACKNOWLEDGES the combined awards of USD 2,079,854.34 that Defendants Shredderhotline.com and Mr.

Dan Scott Burda were ordered to pay to Plaintiffs Auston Transfer & Processing, LLC and Auston Contracting, Inc. by a Default Judgment Order rendered on January 20, 2021 by the United States District Court, Northern District of Illinois, Eastern Division (United States of America) in Case No. 1:19-cv-08506 corresponds to an amount of CAD 2,632,263.66.

More specifically: • In Count I of this Default Judgment Order, the award of USD 893,302.96 corresponds to CAD 1,130,564.23; • In Count II of this Default Judgment Order, the award of USD 293,248.42 corresponds to CAD 371,135.20; and • In Count III of this Default Judgment Order, the award of 893,302.96 corresponds to CAD 1,130,564.23; [ 61 ] RECOGNIZES the Default Judgment Order rendered on January 20, 2021 by the United States District Court, Northern District of Illinois, Eastern Division (United States of America) in Case No. 1:19-cv-08506 against Defendants Shredderhotline.com and Mr.

Dan Scott Burda and in favour of Plaintiffs Auston Transfer & Processing, LLC and Auston Contracting, Inc.; [ 62 ] DECLARES ENFORCEABLE the Default Judgment Order rendered on January 20, 2021 by the United States District Court, Northern District of Illinois, Eastern Division (United States of America) in Case No. 1:19-cv-08506 against Defendants

Shredderhotline.com and Mr. Dan Scott Burda and in favour of Plaintiffs Auston Transfer & Processing, LLC and Auston Contracting, Inc.; [ 63 ] ALL OF WHICH , with legal costs against Defendants Shredderhotline.com and Mr. Dan Scott Burda. __________________________________HONOURABLE SHAUN E. FINN, j.S.C. Mtre Souhail Nejjar Miller Thomson SENCRL / LLP Counsel for the Plaintiffs SHREDDERHOTLINE.COM Unrepresented by counsel DAN SCOTT BURDA Self-represented Hearing date: September 15, 2023