Van Damme v. Gelber et al., 2013 ONCA 388

• Judge: Doherty, Cronk and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 02, 2013
• Jurisdiction: Ontario
• Citations: 2013 ONCA 388;(2013), 307 O.A.C. 81 (CA)

Van Damme v. Gelber (2013), 307 O.A.C. 81 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JN.013

Alexandre Van Damme (applicant/respondent in appeal) v. Nahum Gelber and Gasiunasen Gallery of Palm Beach, Inc. (respondent/appellant)

(C56358; 2013 ONCA 388)

Indexed As: Van Damme v. Gelber et al.

Ontario Court of Appeal

Doherty, Cronk and Lauwers, JJ.A.

June 12, 2013.

Summary:

Van Damme obtained judgment in the Supreme Court of New York requiring Gelber to deliver a painting to Van Damme upon payment by Van Damme to Gelber of the amount agreed upon (less certain stipulated deductions) in a contract for the sale of the painting. When Van Damme obtained judgment in New York, the painting was being held in Ontario pursuant to the terms of an order of the Ontario Superior Court of Justice. Van Damme brought a motion in the Ontario proceeding seeking an order recognizing and enforcing the New York judgment in Ontario and a variation of the earlier Ontario order directing that the painting be released to him.

The Ontario Superior Court allowed the motion and awarded substantial indemnity costs in favour of Van Damme. Gelber appealed the decision on the motion. He also sought leave to appeal the costs award, and if leave was granted, appealed the costs award.

The Ontario Court of Appeal dismissed the appeal with respect to the motion. The court granted leave to appeal and allowed the appeal of the costs award. The court substituted an award for costs on a partial indemnity basis.

Conflict of Laws - Topic 6606

Foreign judgments - General - Recognition of judgment of foreign state - Van Damme obtained judgment in the Supreme Court of New York requiring Gelber to deliver a painting to Van Damme upon payment by Van Damme to Gelber of the amount agreed upon (less certain stipulated deductions) in a contract for the sale of the painting - When Van Damme obtained judgment in New York, the painting was being held in Ontario pursuant to the terms of an order of the Ontario Superior Court of Justice - Van Damme brought a motion in the Ontario proceeding seeking an order recognizing and enforcing the New York judgment in Ontario and a variation of the earlier Ontario order directing that the painting be released to him - The motion judge allowed the motion - Gelber appealed - The Ontario Court of Appeal dismissed the appeal - The appellant attorned to the jurisdiction of the New York court by litigating the merits of the claim in that jurisdiction - He raised and argued the merits of several contract-based defences to the claim brought by Van Damme - That attornment provided a basis upon which an Ontario court could properly recognize the New York judgment - See paragraphs 21 to 27.

Conflict of Laws - Topic 6606

Foreign judgments - General - Recognition of judgment of foreign state - Van Damme obtained judgment in the Supreme Court of New York requiring Gelber to deliver a painting to Van Damme upon payment by Van Damme to Gelber of the amount agreed upon (less certain stipulated deductions) in a contract for the sale of the painting - When Van Damme obtained judgment in New York, the painting was being held in Ontario pursuant to the terms of an order of the Ontario Superior Court of Justice - Van Damme brought a motion in the Ontario proceeding seeking an order recognizing and enforcing the New York judgment in Ontario and a variation of the earlier Ontario order directing that the painting be released to him - The motion judge allowed the motion - Gelber appealed, asserting that, the motion judge failed to follow the approach to the enforcement of non-money judgments set out in Pro Swing Inc. v. Elta Golf Inc. (2006 SCC) - Gelber submitted that the motion judge should have considered whether specific performance would have been an appropriate remedy had the claim been brought in Ontario - If specific performance would not have been an appropriate remedy in a domestic lawsuit, the motion judge should have declined to enforce the New York judgment for specific performance - The Ontario Court of Appeal dismissed the appeal - First, the motion judge was not asked to refuse to recognize the New York judgment on the basis that specific performance would not be an appropriate remedy had the action been brought in Ontario - Second, had this matter been tried in Ontario and had an Ontario court made the same finding as the New York court, specific performance would have been an appropriate remedy having regard to the nature of the property, the nature of Gelber's obligation, and the ready availability of the property - See paragraphs 28 to 31.

Practice - Topic 5924

Judgments and orders - Enforcement of foreign judgments - Submission of defendant to jurisdiction of foreign court - [See first Conflict of Laws - Topic 6606 ].

Practice - Topic 7453

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Delaying tactics and unduly prolonging proceedings - Van Damme obtained judgment in the Supreme Court of New York requiring Gelber to deliver a painting to Van Damme upon payment by Van Damme to Gelber of the amount agreed upon (less certain stipulated deductions) in a contract for the sale of the painting - When Van Damme obtained judgment in New York, the painting was being held in Ontario pursuant to the terms of an order of the Ontario Superior Court of Justice - Van Damme brought a motion in the Ontario proceeding seeking an order recognizing and enforcing the New York judgment in Ontario and a variation of the earlier Ontario order directing that the painting be released to him - The motion judge allowed the motion and awarded substantial indemnity costs in favour of Van Damme - The Ontario Court of Appeal set aside the costs award and substituted an award for costs on a partial indemnity basis - The motion judge erred in principle in imposing costs on a substantial indemnity basis because of his view of Gelber's conduct in the New York litigation - The motion judge should have focused on the Ontario litigation - Had he done so, he would have no doubt concluded that Van Damme, as the successful party, was entitled to his costs, but only on the customary partial indemnity basis - Nothing in the record supported the suggestion that Gelber improperly delayed or complicated the Ontario proceeding - In resisting Van Damme's motion, Gelber made several arguments - Some had little merit and none succeeded - None of the arguments could, however, appropriately attract any kind of cost sanction - See paragraphs 32 to 35.

Cases Noticed:

Wolfe et al. v. Wyeth et al. (2011), 282 O.A.C. 64; 332 D.L.R.(4th) 157; 2011 ONCA 347, refd to. [para. 22].

Gourmet Resources International Inc. (Trustee) v. Paramount Capital Corp. (1991), 5 C.P.C.(3d) 140 (Ont. Gen. Div.), refd to. [para. 23].

Jones (M.J.) Inc. et al. v. Kingsway General Insurance Co. et al. (2004), 189 O.A.C. 272; 72 O.R.(3d) 68 (C.A.), refd to. [para. 23].

Clinton v. Ford (1982), 37 O.R.(2d) 448; 137 D.L.R.(3d) 281 (C.A.), refd to. [para. 24].

Mid-Ohio Imported Car Co. v. Tri-K Investments Ltd. et al. (1995), 65 B.C.A.C. 98; 106 W.A.C. 98; 13 B.C.L.R.(3d) 41 (C.A.), refd to. [para. 25].

Pro Swing Inc. v. Elta Golf Inc., [2006] 2 S.C.R. 612; 354 N.R. 201; 218 O.A.C. 339; 2006 SCC 52, refd to. [para. 28].

Southcott Estates Inc. v. Toronto Catholic District School Board, [2012] 2 S.C.R. 675; 435 N.R. 41; 296 O.A.C. 41; 2012 SCC 51, refd to. [para. 29].

Counsel:

Benjamin Zarnett and Julie Rosenthal, for the appellant;

Jeff Galway and Max Shapiro, for the respondent.

This appeal was heard on May 2, 2013, by Doherty, Cronk and Lauwers, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Doherty, J.A., on June 12, 2013.