Skye Properties Ltd. v. Wu, 2014 NSSC 382 Date: 201410222

SUPREME COURT OF NOVA SCOTIA
Citation: Skye Properties Ltd. v. Wu, 2014 NSSC 382
Date: 201410222
Docket: Hfx No. 427632
Registry: Halifax
Between:
Skye Properties Limited and Roycom Entrepreneurs Limited
Plaintiffs
v.
Jeff Wu and others set forth in Schedule A
Defendants
And Between
Jeff Wu and others set forth in Schedule A
Plaintiffs
by Counterclaim
v.
Skye Properties Limited, Roycom Entrepreneurs Limited,
Jasper Avenue Limited Partnership, 390525 Alberta Limited,
Jasper Avenue G.P. Inc., John Hampson, David G. Williams,
John Roy, Lou Maroun, Roycom Realty Limited, Roycom Securities Limited,
and Roycom Entrepreneurs Real Estate Fund Limited Partnership
Defendants
to the Counterclaim
Judge:
The Honourable Justice Glen G. McDougall
Heard:
October 9, 2014 in Halifax, Nova Scotia
Counsel:
Matthew Conrad, for the Applicants/Defendants and Plaintiffs
by Counterclaim Franklin Chow and Craig McMullan
Counsel:
Andrew Sowerby, for the Respondents/Plaintiffs and
Defendants by Counterclaim Skye Properties Limited and
Roycom Entrepreneurs Limited
Page 2
By the Court:
[1] The Applicants to this Motion, Franklin Chow and Craig McMullan, (the
“Applicants”) seek an Order that a Judgment issued by the Ontario Superior Court
of Justice in 2009 be modified to include an amount of monies owed to them by
Skye Properties Limited and Roycom Entrepreneurs Limited (“Skye” and
“Roycom” or, alternatively, the “Respondents”) in order to make the Judgment
enforceable in Nova Scotia under the Enforcement of Canadian Judgments and
Decrees Act, S.N.S. 2001, c. 30 (the “Act”).
[2] Alternatively, the Applicants request the Court to assess damages and to
grant an Order in an amount that would include a principal sum along with both
pre-judgment and post-judgment interest.
[3] The Motion is opposed on the basis that the Ontario Superior Court decision
(See: Skye Properties Ltd. v. Wu, [2008] O.J. No. 4349)(upheld on appeal to the
Ontario Court of Appeal: Skye Properties Ltd. v. Wu, [2010] O.J. No. 2933)
made no determination of the amount of monies paid by the persons listed in
Schedule B to the Order (a list which includes the two Applicants) nor was further
direction sought to determine the amount.
[4] Counsel for the Respondents further argues that there is no authority to
support the Applicants’ alternative position allowing a Court in this jurisdiction to
carry out an assessment of damages under sub-section (2)(a) of section 8 of the Act
which states:
(2)
On an application under subsection (1), the court may
(a)
make an order that the judgment be modified as may be required to
make it enforceable in the conformity with local practice.
FACTUAL FRAMEWORK:
[5] In order to address the request for relief being sought both under the Act or
in the alternative approach suggested by counsel for the Applicants, it is necessary
to provide some factual context. This will include a brief review of the relevant
portions of the decision from the Ontario Superior Court of Justice.
[6] The Applicants were two of approximately 130 investors in a failed
residential real estate venture in Edmonton, Alberta.
Page 3
[7] Roycom was the General Partner of the fund. Roycom, along with Skye,
promoted the project. Together they sued the Limited Partners for recovery of
loans. A total of 97 of the Limited Partners defended the action and counterclaimed for, amongst other things, a declaration that the loans were null and void
together with damages in respect to all other losses and expenses associated with
the failed investment.
[8] In her decision, released on October 31, 2008, the Honourable Justice Sarah
E. Pepall (now of the Ontario Court of Appeal) stated at para. 123 on p. 52:
[123] In conclusion, the Limited Partners are not contractually obliged to pay the
second secured loans or the cash flow loans to the plaintiffs. For the few
investors who are entitled to a return of those moneys, they are to be repaid.
[9] Under the sub-heading “Relief Granted” on p. 78, paras. 187 and 188,
Justice Pepall wrote:
[187] In conclusion, the plaintiffs’ claim for the amounts due pursuant to the
promissory notes that represent cash flow loans are dismissed. The Limited
Partners’ claims are also dismissed save and except that the requests for the
declarations relating to the second secured loans and the cash flow loans found in
paragraphs 1(d), (e) and (f) of the Further Fresh as Amended Statement of Claim
are granted.
[188] The issue of costs and any other outstanding issues may be addressed by
counsel at a later date to be scheduled with the Commercial List office or in
writing.
[10] A schedule “A” was appended to this decision. Mr. Chow and Mr.
McMullen were included in the list of ninety-seven defendants/plaintiffs by
counterclaim.
[11] The Judgment of the Court granted the following declaratory relief:
3.
THIS COURT DECLARES that the Second Secured Loans and the
Second Secured Notes, as those terms are defined in the Confidential Offering
Memorandum dated June 20, 1989, with respect to the Jasper Avenue Limited
Partnership (“Offering Memorandum”), are null and void and of no force and
effect as against the Plaintiffs by Counterclaim other than the Unrepresented
Parties.
Page 4
[12] Paragraph 4 of the Judgment also provided for the repayment of any monies
paid to the plaintiffs in full or partial satisfaction of the Second Secured Note by
those persons listed in Schedule “B”.
[13] Schedule “B” was attached to the Judgment. Both Mr. Chow and Mr.
McMullan were included in the list. In all there are eight named-individuals.
There is no mention in the decision nor is there anything in the Judgment or any
attachment thereto that sets out the amount to be repaid to the two Applicants
herein. Nor is there any reference to an entitlement to either pre-judgment or postjudgment interest that might accrue to the benefit of the Applicants.
[14] The final paragraph of the Ontario Superior Court’s Judgment provides a
mechanism to deal with costs and any other matter requiring direction. The exact
wording of this paragraph is as follows:
7.
THIS COURT ORDERS that the issue of costs and any other matter
requiring direction as a result of this judgment may be addressed by counsel at a
later date to be scheduled with the Commercial List office or in writing.
[15] As mentioned previously the decision of Justice Pepall was appealed to the
Ontario Court of Appeal.
There was also a cross-appeal by the
defendants/plaintiffs by counterclaim.
[16] Both the appeal and the cross-appeal were dismissed. The Ontario Court of
Appeal made no determinations regarding any amount owed to the Applicants.
[17] The Judgment of the Ontario Superior Court of Justice was made an Order
of the Supreme Court of Nova Scotia pursuant to section 5 of the Act.
[18] Counsel for the Applicants suggests that this Court has the authority under
the Act to determine the amount owed to each Applicant and to add interest from
the date they made the payment on the Second Secured Loan up to the day
judgment was obtained and thereafter according to the rate fixed by legislation in
Ontario (which happens to use the same 5% rate set out in the Interest on
Judgments Act, R.S.N.S., c. 233).
[19] Counsel for Skye and Roycom argues that while the Act might allow for the
enforcement of an existing judgment from another Canadian jurisdiction it cannot
be used as a mechanism to first assess damages and then to enforce payment.
Page 5
THE LEGISLATION:
[20] The relevant provisions of the Act provide for the following:
Effect of registration
6.
Subject to Sections 7 and 8, a registered Canadian judgment may be
enforced in the Province as if it were an order or judgment of, and entered in, the
Supreme Court of Nova Scotia.
[21] The right to register a Canadian judgment in Nova Scotia for the purpose of
enforcement is qualified by section 4, sub-section (2) of the Act. It reads:
Right to register judgment
4
(1)
…
(2)
A Canadian judgment that requires a person to pay money may not
be registered under this Act for the purpose of enforcement unless it is a final
judgment.
[22] The applicants rely on section 8 of the Act to seek the Court’s assistance in
determining the monetary amount owed to each of them. If the Court was to
accede to the request, enforcement could then follow. Section 8, sub-sections (1)
and (2) are as follows:
8
(1)
A party to the proceeding in which a registered Canadian judgment
was made may apply to the Supreme Court of Nova Scotia for directions
respecting its enforcement;
(2)
On an application under subsection (1), the court may (a) make an
order that the judgment be modified as may be required to make it enforceable in
the conformity with local practice;
DISCUSSION:
[23] There is no authority cited to support the proposition advanced by the
Applicants. Counsel for the Respondents, on the other hand, has referred the Court
to a case out of the British Columbia Supreme Court in Apollo Real Estate Ltd. v.
Streambank Funding Inc., 2012 B.C.S.C. 1088 which deals with section 6 of the
British Columbia Enforcement of Canadian Judgments and Decrees Act, S.B.C.
2003, c. 29. Section 6 of that statute is virtually identical to section 8 of the Nova
Scotia statute.
Page 6
[24] Paragraphs 26 and 27 of the Honourable Justice Robert Punnett’s decision in
Apollo Real Estate, supra, provides some very useful and persuasive direction.
He states:
26
Under the Enforcement Act the supervisory role of a court where the
enforcement of an out of province judgment is sought is rejected. A deficiency in
the obtaining of the judgment in the province where it was granted is for that
jurisdiction to correct, not the province where registration is sought.
27
In effect the Enforcement Act removes substantive issues from
consideration in the registering province and turns registration into an
administrative act. Section 3(1) sets out the procedure for registration of a
Canadian judgment:
3 (1) A Canadian judgment is registered under this Act by paying
the fee prescribed by regulation and by filing in the registry of the
Supreme Court
(a)
a copy of the judgment, certified as true by a judge, registrar, clerk
or other proper officer of the court that made the judgment, and
(b)
the additional information or material required by the applicable
Rules of Court.
[25] I agree with Justice Punnett’s interpretation of the British Columbia
legislation and find that the Nova Scotia statute should be similarly interpreted. It
is not for this Court to make an assessment of damages nor to award pre-judgment
interest on the amount to be repaid to each of the Applicants. It is for the Ontario
Superior Court of Justice to make these determinations. That is exactly what
Justice Pepall provided for in paragraph 7 of her Judgment. That is where the
jurisdiction lies not here in Nova Scotia. By having the matter dealt with in
Ontario, it ensures both continuity and consistency in approach. It avoids the
potential risk of Courts in different jurisdictions possibly reaching different results.
DECISION:
[26] The motion to modify the Judgment of the Ontario Superior Court of Justice
to include an amount owed to the Applicants by Skye Properties Limited and
Roycom Entrepreneurs Limited or, alternatively, to assess damages and to add both
pre-judgment and post-judgment interest is dismissed.
Page 7
[27] I will leave it to counsel to try to reach an agreement on costs failing which
they can file written submissions no later than 30 days from the date of release of
this decision.
McDougall, J.

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