2018 QCCA 1608, 2018 QCCA 1608

Think Glass Le verre repensé inc. c. Goldberg 2018 QCCA 1608 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026528-166 (700-17-011561-148) MINUTES OF THE HEARING DATE: September 25, 2018 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. DOMINIQUE BÉLANGER, J.A. MANON SAVARD, J.A. APPELLANT COUNSEL THINK GLASS LE VERRE REPENSÉ INC. Mtre régis nivoix (Doyon Izzi Nivoix, Avocats) RESPONDENT COUNSEL WAYNE B. GOLDBERG Mtre PONORA ANG Mtre MARIE-PIER GAGNON NADEAU (Fasken Martineau DuMoulin S.E.N.C.R.L., s.r.l.) On appeal from a judgment rendered on November 14, 2016, by the Honourable Madam Justice Chantal Corriveau of the Superior Court, District of Terrebonne.

DESCRIPTION : Recognition of a Foreign Judgment. Clerk: Mai Nguyen Courtroom: Pierre-Basile-Mignault (RC.08) HEARING 11:24 Commencement of the hearing. Introductory comments of the Court. 11:26 Submission by Mtre Nivoix. 11:33 Discussion between the Court and Mtre Nivoix. 12:02 Suspension. 12:15 Resumption. The Court informs Mtre Ang that he need not present his oral arguments. BY THE COURT: Unanimous judgment rendered by Nicholas Kasirer, J.A. – see page 3. 12:16 Conclusion of the hearing. (

s) Mai Nguyen Clerk BY THE COURT JUDGMENT [ 1 ] Think Glass Le Verre Repensé inc. has appealed a judgment of the Superior Court, District of Terrebonne (the Honourable Madam Justice Chantal Corriveau), rendered November 14, 2016, which granted Wayne B. Goldberg’s application seeking recognition of a foreign judgment and a declaration that the judgment was enforceable in Quebec. [1] The judgment was rendered by default on October 30, 2014, by the District Court of Tarrant County in the State of Texas, United States of America.

It condemned the appellant to pay damages, fees and judicial costs to the respondent in an amount equivalent to CAN $106,437.60 arising out of a contractual dispute between the parties. [ 2 ] The appellant raises two principal grounds of appeal. I Did the judge err in holding that the “fundamental principles of procedure / principes essentiels de la procédure ” were not contravened? [ 3 ] The appellant recalls that

article 3155, para. 3 C.C.Q . provides that a foreign judgment cannot be recognized in Quebec if the fundamental principles of procedure have been contravened. [ 4 ] The appellant notes that it was designated “ThinkGlass Inc.”, rather than by its legal name “Think Glass Le Verre Repensé inc.”, when Michel Mailhot, a director and officer of the appellant, received service in Boisbriand of the respondent’s proceedings taken before the Texas court. [ 5 ] Returning to the argument it made at trial, the appellant submits that it was wrongly designated in the proceedings such that service was made in respect of an entity that has no legal existence.

The appellant submits that the judge should have held that this

mistaken designation was fatal to the respondent’s application for recognition and enforcement of the Texas judgment because service contravened the fundamental principles of procedure and, accordingly, the presumption of validity benefitting the foreign judgment was reversed. [ 6 ] Furthermore, argues the appellant, the fact that it did not receive service of the proceedings under its proper legal name means that the respondent failed to bring proof of due service, as required for the recognition of default judgments pursuant to

article 3156 C.C.Q . [ 7 ] Did the judge err when she held that service was effected in a manner that did not contravene the fundamental principles of procedure? [ 8 ] The judge made no such error. [ 9 ] The appellant is right to say that the fundamental principles of procedure are generally said to include the right to be served with proceedings in a manner that permits a party to defend itself in a lawsuit. [2] Moreover, where the foreign judgment is rendered by default, it is the plaintiff – here the respondent Goldberg – who has the burden of showing that the act instituting proceedings was duly served on the defaulting party (art. 3156, para. 1 C.C.Q.). [ 10 ] That said, the appellant has failed to show that the judge made a reviewable error in deciding that the service on “ThinkGlass Inc.” was sufficient on the facts of the case. [ 11 ] The proceedings filed in the Texas court were served in accordance with

article 10b) of the Hague Convention Rules on Service Abroad of Judicial and Extrajudicial Documents . It is admitted that a director and officer of the appellant received service of the proceedings at its place of business in Boisbriand. [ 12 ] Recognizing that the legal name of the appellant is “Think Glass Le Verre Repensé inc.”, the judge nevertheless decided that, based on the whole of the evidence, the designation “ThinkGlass” was sufficient for the purposes of valid service.

She added that service of the proceedings was made to a proper representative (para. [35]). [ 13 ] Her conclusions find support in the evidence. [ 14 ] In addition to admitting that it received the claim made against it by Mr. Goldberg at its place of business, the appellant admits that it manufactured and delivered the glass counter that is the subject-matter of the dispute and does not deny that it was paid by Mr. Goldberg for the work.

Moreover, evidence administered at trial confirms the judge’s finding that the appellant sometimes used the names “ThinkGlass” and “Think Glass inc.” in its business dealings. [3] [ 15 ] Nothing in the evidence suggests that the fact that it did not contest the respondent’s claim in Texas was a result of the designation in the served proceedings. It bears noting that the appellant did not call on Mr.

Mailhot to testify. [ 16 ] The purpose of the requirement that proceedings be properly served is, in part, to alert a party that legal proceedings have been brought so that it may be afforded the opportunity to answer the claim with a proper defence. What is clear is that the appellant was made aware of the proceedings taken against it in Texas and, for reasons best known to itself, chose not to appear in defence. In the particular circumstances here, the appellant’s argument that proof of regular service was lacking is without merit.

II Was the judgment “final and enforceable / définitif et exécutoire ” in the place it was rendered? [ 17 ] The appellant further recalls that

article 3155, para. 2 C.C.Q. provides that the presumption of validity of a foreign judgment does not apply where the decision in question is not final or enforceable in the place in which it was rendered. [ 18 ] The appellant submits that the judge erred in paragraph [48] of her reasons when she concluded that the “attestation of non- appeal” signed by the attorney representing the respondent was “sufficient” proof and that Mr.

Goldberg, as plaintiff before her, had established that the Texas decision was final and enforceable. [ 19 ] The appellant argues that the attestation by the respondent’s foreign attorney was invalid here in that he was not a “competent foreign public official / officier public étranger compétent ” as required, it says, by

article 508, para. 1 C.C.P . [ 20 ] As part answer to this ground of appeal, the respondent has included in its factum a certificate signed by the Deputy District Clerk of the Tarrant County District Court, dated January 9, 2017, which, he says, confirms that the default judgment was not appealed. This document, which was not part of the record at trial, is inadmissible in argument. It is incontrovertibly new evidence, within the meaning of

article 380 C.C.P ., and as such, the respondent failed to bring a motion to have it admitted on appeal. [ 21 ] That said, even without the certificate in the file, the appellant’s second ground should be dismissed. [ 22 ] The trial judge expressly found that nothing in the evidence before her suggested that the judgment was not final and enforceable. She wrote that while the judgment was susceptible of appeal, nothing in the file suggested that it had been appealed or subject to a motion in rectification.

No error has been showed in that regard. [ 23 ] While the appellant disputed the regularity of the attestation made by the respondent’s attorney, it has never directly contested the final and enforceable character of the foreign judgment, except to say, once again, that the judgment was not pronounced against an existing entity. [ 24 ] As a matter of substantive law,

article 3155, para. 2 C.C.Q . provides for an exception to the presumptive validity of a foreign judgment when that judgment is “not final or enforceable / n’est pas définiti[f] ou exécutoire ”.

Article 508, para. 1 C.C.P. provides a means for making proof to “ faciliter ” [4] the application of

article 3155 C.C.Q . The trial judge was correctly of the view that the

certificate spoken to in

article 508 C.C.P . is not an absolute requirement for establishing the finality of the foreign judgment (para. [44]). [ 25 ] Accordingly, the matter as to whether a party’s attorney can provide the certificate of a public officer spoken to in

article 508 C.C.P . need not be decided here. [ 26 ] The second ground of appeal is therefore also rejected. FOR THESE REASONS, THE COURT: [ 27 ] DISMISSES the appeal, with legal costs against the appellant. NICHOLAS KASIRER, J.A. DOMINIQUE BÉLANGER, J.A. MANON SAVARD, J.A.