Davidson v. Lesenko et al., (2008) 452 A.R. 269 (QB)

JudgeVeit, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateJune 10, 2008
Citations(2008), 452 A.R. 269 (QB);2008 ABQB 349

Davidson v. Lesenko (2008), 452 A.R. 269 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JN.061

Brantley Davidson (plaintiff/respondent) v. Todd Lesenko and 315155 Alberta Ltd. and 315155 Alberta Ltd. o/a Fountain Tire (defendants/appellants)

(0703 07943)

Todd Lesenko (plaintiff/appellant) v. Brantley Davidson (defendant/respondent)

(0603 06527; 2008 ABQB 349)

Indexed As: Davidson v. Lesenko et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

June 12, 2008.

Summary:

Davidson, a resident of California, made an agreement in California for the acquisition and restoration of a vehicle. He paid various invoices from Lesenko, a resident of Alberta, in American funds by way of bank transfers. The vehicle was to be delivered to Davidson outside Alberta. Davidson brought an action in California based on Lesenko's alleged failure to deliver the vehicle in a timely manner. Davidson obtained a default judgment in California. Meanwhile, Lesenko brought an action in Alberta and obtained an ex parte order for service ex juris against Davidson in the Alberta action. Davidson moved to set aside the order and Lesenko's statement of claim in the Alberta action. Davidson filed a statement of claim to enforce the California judgment.

A Master of the Alberta Court of Queen's Bench, in a decision not reported in this series of reports, allowed Davidson's motion and struck Lesenko's statement of claim in the Alberta action. The Master granted summary judgment to Davidson, enforcing the California judgment. Lesenko applied to set aside the Master's orders.

The Alberta Court of Queen's Bench dismissed the application.

Conflict of Laws - Topic 7285

Contracts - Jurisdiction - Real and substantial connection - Davidson, a resident of California, made an agreement in California for the acquisition and restoration of a vehicle - He paid various invoices from Lesenko, a resident of Alberta, in American funds by way of bank transfers - The vehicle was to be delivered to Davidson outside Alberta - Davidson brought an action in California based on Lesenko's alleged failure to deliver the vehicle in a timely manner - Davidson obtained a default judgment in California - A Master granted summary judgment to Davidson, enforcing the California judgment - Lesenko applied to set aside the Master's order - The Alberta Court of Queen's Bench dismissed the application - California had a real and substantial connection to the action - Lesenko was represented in the California courts on the issue of jurisdiction, and his lawyer of record approved the form of the judgment given by the California court on that issue - The fact that Lesenko did not subsequently receive personal service of the post-decision process including the application for default judgment did not constitute a breach of natural justice - Lesenko was not deprived of the opportunity of appealing the California decision - See paragraphs 3, 24 to 30.

Conflict of Laws - Topic 7285

Contracts - Jurisdiction - Real and substantial connection - Davidson, a resident of California, made an agreement in California for the acquisition and restoration of a vehicle - He paid various invoices from Lesenko, a resident of Alberta, in American funds by way of bank transfers - The vehicle was to be delivered to Davidson outside Alberta - Davidson brought an action in California based on Lesenko's alleged failure to deliver the vehicle in a timely manner - Davidson obtained a default judgment in California - Meanwhile, Lesenko brought an action in Alberta and obtained an ex parte order for service ex juris against Davidson in the Alberta action - Davidson moved to set aside the order and Lesenko's statement of claim in the Alberta action - A Master granted Davidson's motion - Lesenko applied to set aside the Master's order - The Alberta Court of Queen's Bench dismissed the application - The Alberta proceedings should be stayed - Although Alberta also had a real and substantial connection to the action, since a judgment was obtained in California before the Alberta proceedings really got underway, on the application of the principle of comity, it was appropriate for Alberta to decline to exercise its jurisdiction in this matter - Moreover, Lesenko had not established any injustice that he faced because the matter was dealt with in California - See paragraphs 4, 31 to 39.

Practice - Topic 2566

Service - Service of notice, writ or statement of claim out of jurisdiction - Setting aside service or order for service ex juris - General - [See second Conflict of Laws - Topic 7285 ].

Practice - Topic 5921

Judgments and orders - Enforcement of foreign judgments - General (incl. what constitutes a foreign judgment) - [See first Conflict of Laws - Topic 7285 ].

Cases Noticed:

Beals v. Saldanha et al., [2003] 3 S.C.R. 416; 314 N.R. 209; 182 O.A.C. 201, refd to. [paras. 5, 6].

Royal & Sun Alliance Insurance Co. of Canada v. Wainoco Oil & Gas Co. et al. (2004), 364 A.R. 151; 2004 ABQB 643, refd to. [paras. 5, 6].

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 60 O.R.(3d) 20 (C.A.), refd to. [para. 5].

Canada (Attorney General) v. Nalleweg (1998), 223 A.R. 89; 183 W.A.C. 89; 1998 ABCA 282, refd to. [para. 5].

Dickey et al. v. Pep Homes Ltd. et al. (2006), 401 A.R. 149; 391 W.A.C. 149; 2006 ABCA 402, refd to. [para. 6].

Pioneer Exploration Inc. Estate (Bankrupt) v. Euro-Am Pacific Enterprises Ltd. (2003), 339 A.R. 165; 312 W.A.C. 165; 2003 ABCA 298, refd to. [para. 6].

Minnesota Valley Alfalfa Producers Cooperative v. Baloun (2006), 391 A.R. 257; 377 W.A.C. 257; 2006 ABCA 210, refd to. [para. 6].

Duke Energy Corp. et al. v. Duke/Louis Dreyfus Canada Corp. et al. (1998), 219 A.R. 38; 179 W.A.C. 38; 1998 ABCA 196, refd to. [para. 6].

Multiactive Software Inc. v. Advanced Service Solutions Inc., [2003] B.C.T.C. 643; 2003 BCSC 643, refd to. [para. 6].

472900 B.C. Ltd. v. Thrifty Canada Ltd. (1998), 116 B.C.A.C. 233; 190 W.A.C. 233; 168 D.L.R.(4th) 602 (C.A.), refd to. [para. 6].

Westec Aerospace Inc. v. Raytheon Aircraft Co. (1999), 122 B.C.A.C. 18; 200 W.A.C. 18; 1999 BCCA 243, refd to. [para. 6].

Counsel:

Kevin D. Mah (Simons and Stephens), for the appellants;

Kyle R. Kawanami (Emery Jamieson LLP), for the respondent.

This application was heard on June 10, 2008, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on June 12, 2008.

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