Summary
In Povylius-Simpson v. Povylius, 2017 QCCS 2996 (appeal pending) the defendant had misappropriated the property of his incapacitated mother in Ontario. The mother’s heirs sought judicial redress and recovered the mother’s property, but needed to enforce the judgment in Quebec in order to recover a cottage located in that province.
An action for recognition of a foreign judgment was instituted in Superior Court of Québec. The defendant argued that the Ontario proceedings had not been properly served, that his health condition deprived him of his right to full answer and defence, and that he intended to appeal the Ontario judgment.
The case was tried despite a last-minute motion for postponement by the defendant’s attorney. The plaintiffs’ Ontario attorney was heard as a witness.
The Superior Court found that there was no factual basis to the defendant’s submissions. The Ontario proceedings had been served twice, by hand. There had been no motion to appeal in Ontario, nor was there conclusive evidence of mental incapacity on the part of the defendant. The judge therefore granted the motion for enforcement of the Ontario judgment.
The Court also awarded substantial extrajudicial legal fees (i.e. on an attorney-client basis) against the defendant, considering the dilatory postponement requests and ill-founded grounds for dismissal of the plaintiffs’ motion. The Court even reserved the plaintiffs’ right to claim additional fees in the event of further dilatory motions on the part of the defendant.
Although the oral arguments had been in French, the Court rendered its judgment in English, as the pleadings had been drafted in that language.
Key points
The Povylius case illustrates the following principles:
- The out-of-Quebec attorney is a key witness in disputed recognition and enforcement proceedings;
- Quebec courts readily take cognisance of out-of-province pleadings and judgments;
- Quebec courts are willing to sanction dilatory manoeuvres through orders to pay fees on an attorney-client basis;
- Quebec courts will accommodate English-speaking litigants.
Written in collaboration with Samuel Bachand, lawyer.
