In Grayson Consulting Inc. v. Lloyd, 2018 ONSC 2020 (CanLII), the plaintiff obtained a judgment in South Carolina in 2014. The plaintiff commenced proceedings in Ontario in 2017 in respect of the South Carolina and obtained an ex parte Mareva injunction (freezing order) against the defendant. The defendant challenged the Mareva injunction, arguing that the Ontario proceeding was commenced outside Ontario’s two-year limitation period.
The plaintiff argued, among other things, that the limitation period did not commence until the plaintiff received a report from investigators that the defendant had exigible assets in Ontario. The plaintiff relied on the recent case of Independence Plaza 1 Associates L.L.C. v. Figliolini 2017 ONCA 44 (CanLII), in which the Court of Appeal stated that a claim based on a foreign judgment may not be “discovered” until a judgment creditor knew or ought to have known that the judgment debtor had exigible assets in Ontario and could be served with process.
The Judge, applying Independence Plaza 1 Associates L.L.C. v. Figliolini, stated that the plaintiff’s argument was only available to parties who do not find themselves in the “usual case”, and that this was not an unusual case. The Judge stated that the plaintiff knew that the defendant was residing in Ontario. The defendant had never tried to conceal his whereabouts. The Judge stated that once the South Carolina Judgment was final, the plaintiff was under an obligation to conduct itself with due diligence – i.e. it ought to have taken investigatory steps in respect of enforcement opportunities once the South Carolina judgment became final, or shortly thereafter.
The Judge held that the proceedings were commenced outside the two year limitation period and set aside the Mareva injunction.
The lawyers at Gilbertson have experience with proceedings to recognize and enforce foreign judgments as well as with commencing and defending against injunction proceedings. Please contact us to arrange an initial consultation.
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