nan 1999 SKQB 268 Q.B. A.D. 1997 No. 1868 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: GEORGE BROWER and JEANNE BROWER and SUNVIEW SOLARIUMS LTD. DEFENDANTS Catherine A. Sloan for the plaintiffs Gwen V.G. Vanstone for the defendants JUDGMENT DIELSCHNEIDER J. December 24, 1999 [1] In this action the plaintiffs seek to enforce payment by the defendant of judgment for $23,396.03 in US currency awarded them by Carver County District Court, First Judicial District, in the State of Minnesota. The action is defended on the basis that the defendant was not ordinarily resident in Minnesota and, though served with notice of the action, did not appear before the Minnesota court or in any way submit to its jurisdiction. [2] In Saskatchewan the law governing the enforcement of foreign judgments in this jurisdiction is set out in The Foreign Judgments Act, R.S.S. 1978, c. F-18. See the judgment of the Saskatchewan Court of Appeal in Cardinal Couriers Ltd. v. Noyes, 1993 CanLII 6740 (SK CA), [1993] W.W.R. 704, reversing my judgment in the same action reported at 1992 CanLII 7880 (SK QB), [1992] W.W.R. 673. [3] The sections of The Foreign Judgments Act pertinent to this action are: 2. In this Act: nan (c) “foreign country” means any country other than this province, whether kingdom, empire, republic, commonwealth, state, dominion, province, territory, colony, possession or protectorate, or part thereof; 3. For the purposes of this Act, in an action in personam court of 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; (b) where the defendant, when the judgment is obtained, is carrying on business in that country and that country is province or territory of Canada; (c) where the defendant has submitted to the jurisdiction of that court: (i) by becoming plaintiff in the action; or (ii) by voluntarily appearing as defendant in the action without protest; or (iii) by having expressly or impliedly agreed to submit thereto. [4] It was not suggested before me that subsections 3(b) or (c) had application in this matter, only subsection (a) raising therefore the question whether the defendant was, at the time the action in Minnesota was commenced, ordinarily resident in that state. [5] Under subsection 3(a) the plaintiff must establish two things, namely: (1) the time of residence, that is to say, the residence of the defendant at the time of the commencement of the action, and (2) that the defendant was ordinarily resident in Minnesota at the relevant time. [6] turn first to discussion of the term “ordinarily resident” as it is used in the subsection because if the defendant was not ordinarily resident in Minnesota the question of time does not arise. [7] The term “ordinarily resident” is not defined in The Foreign Judgments Act so turn to case law for assistance. [8] In Thomson v. Minister of National Revenue, 1946 CanLII (SCC), [1946] D.L.R. 689 (S.C.C.), Mr. Justice Rand spoke of ordinary residence in these words: The gradation of degrees of time, object, intention, continuity and other relevant circumstances, shows, think, that in common parlance “residing” is not term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one case it is satisfied by certain elements, in another by others, some common, some new. The expression “ordinarily resident” carries restricted signification, and although the first impression seems to be that of preponderance in time, the decisions on the English Act reject that view. It is held to mean residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence. The general mode of life is, therefore, relevant to question of its application. In separate concurring judgment Estey J. spoke of the same term in similar words: reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is “ordinarily resident” in place where in the settled routine of his life he regularly, normally or customarily lives. One “sojourns” at place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in general way the essential difference. nan See also the judgment of my colleague McIntyre J. in Arnold v. Arnold (1998), 1998 CanLII 13372 (SK QB), 164 Sask. R. 252 (Sask. Q.B.) at 255 reversed at (1998), 1997 CanLII 9786 (SK CA), 163 Sask. R. 96 (Sask. C.A.) for reasons not applicable here. [9] The term “ordinarily resident” as it is used in subsection 3(a) must be carefully distinguished from the term “carrying on business” as this term is used in subsection (b). The statement of Ruth Sullivan in Driedger on the Construction of Statutes, Third Edition (Toronto: Butterworths, 1994) at p. 163 is apposite: It is presumed that the legislature uses language carefully and consistently so that within statute or other legislative instrument the same words have the same meaning and different words have different meanings. Another way of understanding this presumption is to say that the legislature is presumed to avoid stylistic variation. Once particular way of expressing meaning has been adopted, it is used each time that meaning is intended. Given this practice, it then makes sense to infer that where different form of expression is used, different meaning is intended. [10] The judgments in the following cases deal with the term “carrying on business”: Wilson v. Hull, 1995 ABCA 374 (CanLII), [1996] W.W.R. 244 (Alta. C.A.); Moses v. Shore Boat Builders Ltd., 1993 CanLII 2276 (BC CA), [1994] W.W.R. 112 (B.C.C.A.); Amopharm Inc. and Magypharm Inc. v. Harris Computer Corporation (1992), 1992 CanLII 7514 (ON CA), 93 D.L.R. (4th) 524 (Ont. C.A.); Davis Co. v. Dunn (1996), C.P.C. (4th) 347 (N.W.T.S.C.); 917294 Ontario Inc. v. 167644 Canada Inc. (1994), 1994 CanLII 4716 (SK QB), 119 Sask. R. 217 (Sask.Q.B.); T.D.I. Hospitality Management Consultants Inc. (c.o.b. Grande Prairie Inn) v. Browne, 1994 CanLII 10958 (MB CA), [1994] W.W.R. 153 (Man. C.A.) and Silverstar Properties Ltd. v. Veinotte, [1998] B.C.J. No. 2385 (Q.L.)(B.C.S.C.). Each case must be analysed in its own facts. [11] On the facts of this case the defendant manufactured solarium in Saskatoon, Saskatchewan which it sold to the plaintiffs in Minnesota. The plaintiffs alleged that the solarium was defective and sued the defendant and obtained the judgment in the Minnesota court which it now seeks to enforce in Saskatchewan. The defendant was served in Saskatoon with notice of the plaintiff’s claim but did not appear and defend the action or in any way submit to the jurisdiction of the Minnesota court. [12] The defences available to defendant in Saskatchewan where an action is brought to enforce foreign judgment are set out in s. of The Foreign Judgments Act: nan Where an action is brought in this province upon foreign judgment, it is sufficient defence: (a) that the original court did not have jurisdiction for the purposes of this Act; (b) that the defendant, being defendant in the original action, was not duly served with the process of the original court and did not appear, notwithstanding that he was carrying on business or was ordinarily resident in the foreign country or agreed to submit to the jurisdiction of that court; (c) that the judgment was obtained by fraud; (d) that the judgment is not final judgment; (e) that the judgment is not for sum certain in money; (f) that the judgment is for payment of penalty or sum of money due under the revenue laws of the foreign country; (g) that the judgment has been satisfied or for any other reason is not subsisting judgment; (h) that the judgment is in respect of cause of action that, for reasons of public policy or for some similar reason, would not have been entertained by the courts of this province; (i) that the proceedings in which the judgment was obtained were contrary to natural justice. [13] The defence here is that the court in Minnesota did not have jurisdiction over the defendant because at the time the action was commenced the defendant was not “ordinarily resident” in the state of Minnesota, and did not appear and surrender to its jurisdiction. [14] The defendant advertised its business in the state of Minnesota and elsewhere in the United States, and employed agents there to sell its product. In advertising its business the defendant made use of United States postal facilities and had to comply with postal regulations which required an address in the United States. In order to comply the defendant arranged for an address at 701-4th Avenue South, Suite 500, in the City of Minneapolis. An address of this nature could be understood as connoting either residential or business address. But because of the activities of the defendant in Minnesota, that is to say, its activities in sales, the logical conclusion, so it seems to me, is that it is a business address. [15] On these facts therefore it could be argued, in my view with some success, that the defendant carried on business in the state of Minnesota. The authorities have quoted support that approach. [16] The question here however is otherwise. The question is whether the defendant was ordinarily resident in the state of Minnesota. On the dicta of Rand J. and Estey J. in Thomson, supra, the question must be answered in the negative. So also on an analysis of s. of The Foreign Judgments Act. Subsection 3(a) uses the term “ordinarily resident” while subsection 3(b) uses the term “carrying on business”. The case law have reviewed convinces me there is real difference in the meaning of these terms and that the Act reflects that difference. While there may be evidence supporting the conclusion that the defendant was carrying on business in Minnesota, that same evidence does not support the conclusion that the defendant was ordinarily resident there. [17] Because the defendant was not ordinarily resident in Minnesota when the action was commenced the second factor, the time question raised in subsection 3(a) needs no further explication. [18] For these reasons the plaintiff’s action is dismissed with costs to be taxed.
The defendant manufactured solarium in Saskatoon which it sold to the plaintiffs in Minnesota. The plaintiffs alleged the solarium was defective, sued and obtained judgment in the Minnesota Court which it now sought to enforce in Saskatchewan. The defendant argued the Minnesota court did not have jurisdiction because at the time the action was commenced he was not 'ordinarily resident' in the state of Minnesota. The defendant was served in Saskatoon with notice of the claim but did not appear or defend the action or surrender to its jurisdiction. HELD: The action was dismissed with costs to be taxed. 1)The defences available to defendant in Saskatchewan where an action is brought to enforce foreign judgment are set out in s.6 of the Foreign Judgments Act. 2)While there may be evidence supporting the conclusion that the defendant was carrying on business in Minnesota, that same evidence does not support the conclusion the defendant was ordinarily resident there. The defendant advertised its business in Minnesota and elsewhere in the United States and employed agents there to sell its product. The logical conclusion was that the address in the city of Minneapolis was a business address. It could be argued that the defendant carried on business in the state of Minnesota but the question was whether the defendant was ordinarily resident in that state. The Foreign Judgments Act reflects real difference in the meaning of 'ordinarily resident' and 'carrying on business'.