The Ontario Superior Court of Justice in Simpson Performance Products Inc v Simpson 2011 ONCA 2352 refused to grant summary judgment to the plaintiff which had obtained a U.S. judgment against the defendant. The defendant defended the Ontario action and in his pleadings stated “This defendant further claims that the Texas Judgment should not be recognized in Ontario or enforced here because the judgment was obtained without a fair trial because this defendant could not defend himself in Texas because of the high costs of litigation in Texas. He was therefore unable to defend that action and did not attorn to that jurisdiction”.
In the affidavit in response to the summary judgment motion, the defendant deposed that in the Answer filed on his behalf in the Texas proceedings he had denied that “Texas had any jurisdiction to hear the claim by the Plaintiffs since the dispute had no connection to Texas” and denied that he “ attorned to the jurisdiction of the Texas court or admitted in any way that the Texas court had jurisdiction”
The judge hearing the motion for summary judgment in Ontario Superior Court of Justice recited the three criterion to be established in order for a foreign judgment to be enforced in Ontario, namely: (i) the defendant has attorned to the foreign jurisdiction, (ii) the plaintiff satisfies the court of the real and substantial connection between the foreign jurisdiction and the subject matter of the dispute, and (iii) the plaintiff satisfies the Ontario court of the merits of the action.
The Ontario Superior Court of Justice focused on the issue of attornment and found on the evidence as a question of fact (as the Court is permitted to do, as per the Ontario Court of Appeal in Gourmet Resources International (Trustee of) v Paramount Capital Corp 1993 CarswellOnt 1856 (C.A.)) that it was not satisfied that the actions of the defendant amounted to the defendant attorning to the jurisdiction of the Texas court.
The record before the Ontario court did not contain the material filed by the defendant’s Texas counsel. But in the face of the pleadings filed by the defendant in Texas, the Ontario court held that it could not clearly conclude that there was attornment, particularly when Rule 12(h)(1)(B) of the (US) Federal Rules of Civil Procedure provides that a defence of lack of jurisdiction is waived if neither made by motion nor included a responsible pleading.
Admitted in Ontario, Canada and New York, USA
Also admitted (but not practicing) in England and Wales, and Bermuda
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