In the recent Court of Appeal decision of Sunlight General Capital LLC v. Effisolar Energy Corporation, 2023 ONCA 133, the Court of Appeal reaffirmed the principles established in Independence Plaza 1 Associates L.L.C. v. Figliolini, 2017 ONCA 44, 136 O.R. (3d) 202, (“Independent Plaza 1”) at para. 3, that the limitation period for the recognition and enforcement of a foreign judgment begins to run from the date on which the right of appeal in respect of that judgment expires, and not from the date of issuance of the judgment.
The Respondent, Sunlight General Capital LLC (the “Respondent”), had obtained a judgment against the Appellant, Effisolar Energy Corporation (the “Appellant”), in the Supreme Court of New York for approximately 1.6 million U.S. The judgment was issued on October 18, 2018, and on May 19, 2019, an appeal with the Supreme Court of New York was administratively dismissed. The Respondent moved to have the judgment recognized in Ontario on June 14, 2021.
Lower Court Ruling:
The lower court on a summary judgment motion granted recognition and enforcement of the judgment to the Respondent, finding that the proceeding was brought within the limitation period. The Appellant sought to appeal the ruling with respect to the limitation period.
Court of Appeal Decision:
The Appellant argued that the learned motion judge erred in holding that the limitation period began on May 19, 2019, taking the position that it ought to have run from the judgment issuance date by the Supreme Court of New York of October 18, 2018.
The Court of Appeal noted that the Appellant did not raise the argument before the lower court. Before the motion judge the Appellant had argued that the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, O. Reg 73/20, pursuant to which limitation periods were suspended for six months, as a result of the pandemic, did not apply. The motion judge rejected that argument.
Second the Court of Appeal noted that the Appellant had agreed that “the limitation period on the enforcement of a foreign judgment begins to run from the date on which the right of appeal in respect of that judgment expires, the date on which the appeal is decided, or the date on which the appeal is dismissed” and was now attempting to resile from the agreement. The Court of Appeal held it was not appropriate for the Court of Appeal to permit the Appellant to change on appeal the basis for which the motion was argued below.
Finally, the Court of Appeal held that the Appellants request that the appeal be heard by a panel of five judges in order to reconsider the principles related to limitation periods applicable to the recognition and enforcement of foreign judgments as espoused in Independent Plaza 1, was rejected by the Associate Chief Justice and in light of that refusal the Court was not prepared to revisit the ruling in Independent Plaza 1.
The Court of Appeal therefore dismissed the appeal and awarded costs for the appeal to the Respondent in the sum of $24,000.
Do you need help with having a foreign judgment recognized and enforced in Ontario? The lawyers at Gilbertson Davis have experience in representing parties seeking to enforce foreign judgments in Ontario.
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