Re Brower and Sunview Solariums Ltd.
(1998) 156 D.L.R. (4th) 752(Sask QB)

HRABINSKY J.:-- The applicants ask for an order pursuant to Rule 129 of the Queen's Bench Rules for leave to enter final judgment for the amount of $23,396.03 (U.S.) together with interest and costs on the following grounds:

(a) that the Claim is brought to recover a debt due; and

(b) that there is no defence to the action on the merits.

The respondent was personally served with the process of the original Court by personal service in the City of Saskatoon. The respondent failed to answer the claim or otherwise defend the action in the State of Minnesota.

The applicants obtained a judgment against the respondent on or about, the 5th day of August, 1997, in the Carver County District Court, First Judicial District, State of Minnesota, in the amount of $23,396.03 (U.S.).

One of the applicants has deposed in his affidavit that he believed that respondent has no defence to the claim on the merits.

A certified copy of the Findings of Fact, Conclusions of Law, Order for Judgment, and Judgment and Decree, dated August 5, 1997, discloses that the matter came on for trial on the aforesaid date in the Carver County Court House, Chaska, Minnesota, with the plaintiffs appearing in person and by their attorney. On the evidence adduced at the trial, the Court made the following findings of fact:

 

1. The plaintiffs met one Robert Dole, an employee of the respondent, at a "Home and Garden" show where the respondent was exhibiting additions to homes featuring a solarium.

 

2. The respondent is a Canadian corporation with its principal place of business at Saskatoon, Saskatchewan, Canada.

 

3. At all relevant times, the respondent represented in writing in its brochures that it had an office at 701-4th Avenue S., Suite 500, in the City of Minneapolis, Minnesota, and in fact conducted business in the State of Minnesota.

 

4. The respondent had a licensed dealer for the State of Minnesota promoting its products.

 

5. Robert Dole made specific representations and promises concerning the performance and the workmanship of the solarium and the applicants received a brochure indicating, among other things, that the said solariums are built with the "finest materials by certified dealers".

 

6. On or about March 8, 1995, based on the representations, promises and warranties of the respondent, Sunview Solariums Ltd., the plaintiffs contracted in writing for the construction of a solarium and fully performed their obligations under the contract by paying for the solarium, its delivery and construction.

 

7. The applicants experienced numerous problems with the solarium, including window leakage, stained woodwork and uncomfortable temperatures, in breach of the material representations upon which the applicants relied resulting in damages to them for which the applicants obtained judgment as aforesaid

The respondent failed to pay the judgment and on September 22, 1997, the applicants commenced this action to recover the amount of the judgment plus interest and costs.

The pertinent portion of the respondent's (defendant's) statement of defence reads as follows:

3. The Defendant states that the Carver County District Court, First Judicial District, State of Minnesota does not have jurisdiction over the said matter pursuant to section 3 of The Foreign Judgments Act, R.S.S. 1978, c. F-18, the particulars of which include the following:

1. The Defendant was not ordinarily resident in the State of Minnesota at the time of commencement of the action;

 

2. The Defendant was not carrying on business in the State of Minnesota when the Judgment was obtained and the said state is not a province of [sic] territory of Canada;

 

3. The Defendant has not submitted to the jurisdiction of the Carver County District Court First Judicial District, State of Minnesota by voluntarily appearing as a defendant in the action without protest or by having expressly or impliedly agreed to submit thereto, or otherwise

In opposition to the application, James MacLaurin, director and president of the respondent deposed in his affidavit in part as follows:

5. As Sunview distributes a brochure in the United States it desired to have a pre-paid postal address available for persons who were seeking further information. As the United States postal service required a local address to qualify for pre-paid standing, arrangements were made to set up a local address at a mail centre which forwarded the mail received in Sunview's name to Sunview's office in Saskatchewan. This arrangement was made with a mail centre in Minneapolis, Minnesota.

6. At no time did Sunview have an office in Minnesota or have any persons employed in Minnesota. On occasion a sales manager from Saskatchewan would travel there to assist its dealer. The last time Sunview had the opportunity to supply its Minnesota dealer with product was well over one year ago and certainly was prior to October of 1996.

Did the Minnesota Court have jurisdiction?

Rule 129(1) of the Queen's Bench Rules for Saskatchewan reads as follows:

129(1) Where the action is brought to recover a debt or liquidated demand and the defendant, or one or more of the defendants if there are several defendants, has or have defended, the plaintiff may on affidavit, made by himself or by any other person who can swear positively to the facts, or if the plaintiff is a corporation by any officer or servant or other person who can swear positively to the facts, verifying the cause of action and the amount claimed as due, and stating in the belief of the deponent that there is no defence to the action on the merits, apply to the court for leave to enter final judgment for the amount of the claim or the amount so verified as due to the plaintiff (not exceeding the amount of the claim) together with interest (if any) and costs. [Emphasis added.]

This Rule provides that the applicant (plaintiff) must:

(1) show that the cause of action is for a debt or liquidated demand;

1. verify the cause of action and the amount claimed as due;
2. express a belief that there is no defence to the claim on the merits.

Once these elements are met, the applicant (plaintiff) is prima facie entitled to judgment, and the onus then shifts to the respondent (defendant) pursuant to Queen's Bench Rule 132 to show that the matter ought to proceed to trial. See: Stanford v. Agricultural Credit Corp., [1995] S.J. No. 497 (QL) (C.A.) [summarized 58 A.C.W.S. (3d) 39].

The applicants' action in Saskatchewan was commenced pursuant to The Foreign Judgments Act, R.S.S. 1978, c. F-18, seeking the statutory remedy of a judgment provided under that Act. In response, the respondent filed its statement of defence, relying on the statutory defence provided under the said Act, namely, that the foreign court did not have jurisdiction as contemplated under that Act.

I find that the applicant has met the necessary elements pursuant to Queen's Bench Rule 129 and is therefore prima facie entitled to judgment. I must now determine whether the respondent has met the onus to show that the matter ought to proceed to trial.

The law is well settled in Saskatchewan that the provisions for summary judgment are not to be used unless it is very clear that the defendant has no substantial defence to submit to the Court, and that there is no fairly arguable point to be presented on behalf of the defendant. See Royal Bank of Canada v. Malouf, [1932] 2 W.W.R. 526 (Sask. C.A.).

The respondent's position is that the Minnesota Court did not have jurisdiction because the respondent (defendant) was not at the time of the commencement of the action, ordinarily resident in the State of Minnesota.

Section 3(a) of The Foreign Judgments Act provides:

3. For the purposes of this Act, in an action in personam a court of a foreign country has jurisdiction in the following cases only:

(a) where the defendant is, at the time of the commencement of the action, ordinarily resident in that country;

Section 6(1)(a) of The Foreign Judgments Act reads:

6. Where an action is brought in this province upon a foreign judgment, it is a sufficient defence:

(a) that the original court did not have jurisdiction for the purposes of this Act;

On the evidence adduced at trial, the trial judge of the Minnesota Court found as a fact that the respondent represented in its brochures that it had an office in the City of Minneapolis, Minnesota, and "in fact conducted business in the State of Minnesota".

The words "ordinarily resident" are not defined in The Foreign Judgments Act, nor have there been any decisions defining the meaning of those words in the context of that Act.

However, my review of the "residence" cases leads me to conclude that each depends on its own facts and circumstances. I find that it is possible, in some contexts, for an individual to be resident in two or more places. This is particularly so in the case of corporations which, in the current commercial setting, often conduct businesses in jurisdictions other than the jurisdictions in which they have been incorporated or in which they have head offices.

In the matter before me the foreign Court found that the respondent corporation represented that it had an office in the State of Minnesota and that it conducted business in that state.

Such an adjudication is conclusive and may not be impeached for any error of fact or law by virtue of s. 5 of The Foreign Judgments Act which provides:

5. Subject to the other provisions of this Act, and for the purposes of this Act, a foreign judgment is conclusive as to any matter adjudicated upon and shall not be impeached for any error of fact or law.

I conclude that a corporation which represents that it has an office in a foreign jurisdiction and conducts business in that jurisdiction is "ordinarily resident" in that jurisdiction within the context of The Foreign Judgments Act. I find that the respondent was ordinarily resident in the State of Minnesota and therefore the Minnesota Court had jurisdiction for the purposes of The Foreign Judgments Act.

There shall be an order pursuant to Queen's Bench Rule 129 granting the applicant leave to enter final judgment for the sum of $23,396.03 (U.S.) together with interest and taxable costs.

Sunview Solariums Ltd v Brower Ltd.
(1998) 161 DLR (4th) 575 (Sask CA)

LANE J.A.:-- The respondents purchased a solarium manufactured by the appellant after viewing a display at a Home and Garden show in the State of Minnesota. Claiming the solarium was defective, the respondents commenced an action and obtained judgment against the appellant in Minnesota. The appellant did not appear nor defend the action.

The respondents then made a successful application in Queen's Bench chambers for summary judgment pursuant to Rule 129 of the Queen's Bench Rules (Sask.).

We are all of the view there are factual issues in dispute. We also wish to make it clear we are not passing on the chamber judge's legal analysis, which may or may not be correct, of ordinarily resident", or the effect of s. 5, both of The Foreign Judgments Act, R.S.S. 1978, c. F-18. However, the chamber judge erred in finding the test for the granting of a summary judgment had been met, as there is the possibility of defences on the merits based on factually contested matters and thus there ought to be a trial.

The appeal is allowed and the order below is set aside with costs in the usual manner of double Column V before us and the applicable Queen's Bench tariff below.