PATRICK PICHETTE KENAUK CANADA ULC THE BAY MEADOW LIMITED PARTNERSHIP FAIRLIGHT CABIN QUEBEC KENAUK PROPERTIES ORGANIX CORPORATION AND NORTH OAKS INVESTMENTS LLC v. Charles Bich, Defendant. (2025)

Overview

Northwest of Montreal, Canada are 100 square miles of Quebec wilderness. Then owned by a pension fund, the property was put up for sale in 2013. Purportedly, according to one Montreal newspaper account, it was the largest parcel of land ever offered for sale on the eastern seaboard of North America. Known as the Kenauk property, it was described as wilderness existing very much today as it did 300 years ago. It has 70 lakes and a trout hatchery. A 9-mile trout river runs through it.¹ According to one published account, there is no cellphone service. "Somewhere to hunt and trap and run free in the woods, to fish for lunch, surrounded only by the deep silence of the wilderness, one populated only by forest creatures and a few friends."²

Much in contrast, those who were desirous of purchasing the Kenauk property have not been silent. Nor are they now friends.

Commencing in 2015 with a battle in the Quebec courts, individuals interested in obtaining the Kenauk property have litigated extensively their dispute, arriving now in this country and this court to litigate further — the plaintiff here attempting to secure recognition of a Quebec judgment against the defendant arising from alleged misconduct in the Canadian legal system.

The defendant resists the recognition of the foreign judgment, alleging a violation of his rights in the Canadian legal system — where he commenced the action -- and also that the Canadian judgment is one ineligible for recognition in New York as violative of his First Amendment rights.

The judge in the Canadian action, coincidentally sharing a surname and given name (Thomas Davis) with this Justice, but not a middle name (Ritchie here, initial M. for the Canadian counterpart), ruled against Dutchess County New York resident, Charles Bich, an heir to the "Bic" pen and shaver fortune in a judgment dated May 31, 2022 (hereinafter "the Trial Judgment"), which determined the merits of the action and declared the litigation to have been "abusive". The Canadian judge thereafter issued a separate judgment dated August 31, 2023 (hereinafter "the Punitive Judgment") in which he imposed penalties against Bich, writing, again, that "the Court finds Plaintiffs' conduct during the proceeding abusive." In the Punitive Judgment, the Canadian Court imposed a legal fee award against Bich in the amount of $1,297,285.92 CAD, and punitive damages against Bich in the amount of $175,000 CAD for "abusive" litigation.

Bich has paid the legal fee. He resists paying the punitive damages penalty. Plaintiffs now seek recognition of the Canadian judgment dated August 31, 2023 to enforce the punitive damages portion thereof here in New York pursuant to CPLR § 5704.

I. Procedural status

The instant action in New York was commenced by a motion in lieu of complaint (CPLR § 3213) filed by the aggrieved parties in the Canadian litigation — Doug Harpur, Patrick Pichette, Kenauk Canada ULC, The Bay Meadow Limited Partnership, Fairlight Cabin Quebec L.P. , Kenauk Properties L.P,, Organix Corporation and North Oaks Investments, LLC.

The motion was filed originally in New York County on May 30, 2024. In July of 2024, the Defendant removed the action to federal court — specifically, the Southern District of New York. In filing the removal, the Defendant submitted the following to the Federal Court and Supreme Court New York County:

"The above-described State Court Action is one that may be removed to the United States District Court by Defendant pursuant to the Securing The Protection Of Our Enduring and Established Constitutional Heritage Act, 28 U.S.C. Sections 4101, et seq. (the "SPEECH Act").

The SPEECH Act provides for removal to federal courts where, as here, an enforcement action has been filed in state court. See 28 U.S.C. § 4103; Jean-Baptiste v. Smith, No. 23-CV-10466 (JGK), 2023 WL 8603044, at *2 (S.D.NY Dec. 11, 2023) ("28 U.S.C. § 4101(1)[ ] governs the recognition of foreign defamation judgments in domestic courts"); Perret v. Handshoe, 708 F. App'x 187, 189 n.12 (5th Cir. 2018)." (NYSCEF Doc. No. 21, ¶¶8-9.)

On December 2, 2024, US District Judge Cathy Seibel signed an order remanding the matter back to the New York state courts. Judge Seibel found that the judgment from the Quebec court was not a "foreign judgment for defamation" under the SPEECH Act and thus, federal courts did not have jurisdiction. By stipulation of December 23, 2024, the parties agreed to a change of venue to Dutchess County of the Supreme Court action.

The Defendant has filed opposition to the motion in lieu of complaint, numerous exhibits and an answer with counter-claims. Oral argument was heard on July 29, 2025.³

II. The recognition of foreign judgments.

Comity is the term used when a foreign judgment is recognized, a long-standing facet of United States law.

"Comity is 'the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.' Hilton v. Guyot, 159 U.S. 113, 163—64, 16 S.Ct. 139, 40 L.Ed. 95 (1895). The rationale underlying the grant of comity to a final foreign money judgment is similar to that underlying the application of res judicata to domestic judgments. Essentially, once the parties have had an opportunity to present their cases fully and fairly before a court of competent jurisdiction, the results of the litigation process should be final. Cunard S.S. Co. v. Salen Reefer Services AB, 773 F.2d 452, 457 (2d Cir.1985); Moore's Federal Practice, § 131.11[1]" (Intl. Transactions, Ltd. v Embotelladora Agral Regiomontana, SA de CV, 347 F3d 589, 593 [5th Cir 2003]).

"International law, in its widest and most comprehensive sense,—including not only questions of right between nations, governed by what has been appropriately called the 'law of nations,' but also questions arising under what is usually called 'private international law,' or the 'conflict of laws,' and concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation,—is part of our law, and must be ascertained and administered by the courts of justice as often as such questions are presented in litigation between man and man, duly submitted to their determination.

[ . . . ]

No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call 'the comity of nations.' Although the phrase has been often criticised, no satisfactory substitute has been suggested.

'Comity,' in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws" (Hilton v Guyot, 159 US 113, 163-64 [1895]).

In New York, comity is codified in Article 53 of the CPLR. Under the article, New York law makes the recognition of a foreign country's judgment mandatory with limited exceptions:

"(a) Except as is otherwise provided in section fifty-three hundred four of this article or any controlling law of the United States, a court of this state shall recognize a foreign country judgment to which this article applies as conclusive between the parties to the extent that it grants or denies recovery of a sum of money." (CPLR § 5303 (a).)

Those limited exceptions are contained in CPLR § 5304:

"§ 5304. Grounds for non-recognition.

(a) A court of this state may not recognize a foreign country judgment if:

1. the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law;

2. the foreign court did not have personal jurisdiction over the defendant; or

3. the foreign court did not have jurisdiction over the subject matter.

(b) A court of this state need not recognize a foreign country judgment if:

1. the defendant in the proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable the defendant to defend;

2. the judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case;

3. the judgment or the cause of action on which the judgment is based is repugnant to the public policy of this state or of the United States;

4. the judgment conflicts with another final and conclusive judgment;

5. the proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by a proceeding in that court;

6. in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action;

7. the judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering courts with respect to the judgment;

8. the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law; or

9. the cause of action resulted in a defamation judgment obtained in a jurisdiction outside the United States, unless the court before which the matter is brought sitting in this state first determines that the defamation law applied in the foreign court's adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York constitutions.

(c) A party resisting recognition of a foreign country judgment has the burden of establishing that a ground for non-recognition stated in subdivision (a) or (b) of this section exists; provided that the party seeking recognition shall bear the burden of establishing the adequate protections for freedom of speech and press required as a condition to recognition under paragraph nine of subdivision (b) of this section if the party resisting recognition establishes that the judgment is for defamation." (CPLR § 5304.)

Therefore, CPLR § 5304 lays out two categories upon which a foreign judgment may not be recognized: Those where recognition is not permitted and those where recognition need not be permitted. In other words, mandatory non-recognition and discretionary non-recognition.

Here, the Defendant seeks to avoid recognition on the following grounds, all of which are discretionary:

"2. the judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case;

3. the judgment or the cause of action on which the judgment is based is repugnant to the public policy of this state or of the United States;

[ . . . ]

7. the judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering courts with respect to the judgment;

8. the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law; or

9. the cause of action resulted in a defamation judgment obtained in a jurisdiction outside the United States, unless the court before which the matter is brought sitting in this state first determines that the defamation law applied in the foreign court's adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York constitutions."

The party seeking to avoid recognition has the burden of proof, except when it comes to matters involving defamation:

(c) A party resisting recognition of a foreign country judgment has the burden of establishing that a ground for non-recognition stated in subdivision (a) or (b) of this section exists" (CPLR § 5304(c)).

If however, the resisting party meets the burden of establishing that the judgment is for defamation, then the burden shifts to the party seeking recognition to establish that the foreign jurisdiction affords "adequate protections for freedom of speech and press" specifically "as much protection for freedom of speech and press in that case as would be provided by both the United States and New York constitutions." (CPLR § 5304(b)(9).)

In 2021, the legislature amended CPLR § 5304 to specify the burden of proof.

NY LEGIS 127 (2021), 2021 Sess. Law News of NY Ch. 127 (S. 523-A) (McKINNEY'S). While previously, on a motion for summary judgment, the moving party was required to establish a prima facie case that the mandatory grounds for non-recognition were not present, the burden is now on the resisting party to prove same do exist. Regardless, however, under the circumstances here -- a Canadian judgment from a Court proceeding initiated in Canada by the Defendant -- the moving papers establish that neither of the potential grounds for mandatory non-recognition exist.

III. Mandatory non-recognition

It is important to point out initially, even though not put forward by the Defendant, that it is well established that "Canada [is] a sister common law jurisdiction with procedures akin to our own" (Clarkson Co., Ltd. v Shaheen, 544 F2d 624, 630 [2d Cir 1976]; see, also, Canadian Imperial Bank of Commerce v. Saxony Carpet Co., 899 F.Supp. 1248, 1252, affd. 104 F.3d 352; Lenchyshyn v. Pelko Elec., 281 AD2d 42, 46—47, 723 N.Y.S.2d 285; Constandinou v. Constandinou, 265 AD2d 890, 695 N.Y.S.2d 844); Wimmer Can., Inc. v Abele Tractor & Equip. Co., Inc., 299 AD2d 47, 49 [3d Dept 2002]).

Further, the jurisdictional defense is not available to the defendant. "Defendant voluntarily appeared in the proceedings in Canada (see, CPLR 5305[a][2] ), and thus the court had personal jurisdiction over her (see, CPLR 5304[a][2] )" (Constandinou v Constandinou, 265 AD2d 890, 890 [4th Dept 1999]).

IV. The controlling standards for a motion in lieu of a complaint. CPLR § 3213.

"When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint." (CPLR § 3213.)

Accordingly, a motion in lieu of complaint is a proper method for obtaining the relief sought. As such, the usual standards for analysis of summary judgment motions apply. "A party utilizing this accelerated judgment procedure prevails 'if, upon all the papers and proof submitted, the cause of action ... shall be established sufficiently to warrant the court as a matter of law in directing judgment' for the plaintiff (CPLR 3212[b] ). A defendant can defeat a CPLR 3213 motion by offering evidentiary proof sufficient to raise a triable issue of fact (see Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., 32 NY2d 285, 290, 344 N.Y.S.2d 925, 298 N.E.2d 96 [1973] )" (Banco Popular N. Am. v Victory Taxi Mgt., Inc., 1 NY3d 381, 383 [2004]).

V. The Canadian judgment

The litigation in Canada concerned Mr. Bich's claim that he had entered into an agreement with the Plaintiffs here to put together a bid and plan for the purchase of the Kenauk property from the pension fund. Mr. Bich alleged that he entered into an exclusive agreement with them and had come to mutually agreeable terms on the bid and plan for the property, only to be shut out by the Plaintiffs who joined with different investors to obtain the property. Mr. Bich sued in the Quebec court seeking money damages. The punitive damages part of the Quebec Punitive Judgment dated August 31, 2023, begins by citing multiple quotations from what appears to be the equivalent in Canada of the original complaint, called there a "motion to institute proceedings." (In this case, the quotes are from an amended motion to institute proceedings). Specifically, the Canadian Court recited language by which Bich had accused Harpur and Pichette of "bad faith;" engaging in a "scheme" and "deceitful acts" and "illegal[ity]:" "dishonest[y];" and "untruthful[ness]." (NYSCEF Doc. No. 12, pgs. 18-19.)

The judge in Canada ruled that Bich "did not even come close to proving the allegations made in relation to Defendants conduct" at trial. The Canadian Court called the allegations "unnecessary."

"The essence of Plaintiffs' claim is a breach of Defendants' undertaking to make a joint bid with Plaintiffs and of their alleged undertaking to collaborate exclusively with Plaintiffs to prepare the bid. Hence, Plaintiffs only needed to present their allegations in a manner that would have allowed the Court to consider whether an exclusivity agreement had been agreed to in August 2013 and whether a joint bid agreement had indeed been concluded between the parties. Unfounded and unsubstantiated allegations around Defendants' conduct were not necessary. What is more, at trial Plaintiffs did not rely on the bad faith of Defendants to put forward their claims around these two alleged agreements, but rather on Mr. Bich's understanding of an August 22, 2013 phone conversation on exclusivity and of the September 3 email from Mr. Harpur. [95] Business dealings do not always go the way one or other party intended, but that does not give licence to disparage the other party with unsubstantiated, harmful and frivolous allegations." (NYSCEF Doc. No. 12, pg. 21.) [Emphasis added.]

What is important to remember is that the Punitive Judgment now being challenged by Bich is not one in which he lost the case in Canada, but one that arose from how he went about litigating it. Thus, many of Mr. Bich's complaints about the Canadian proceedings are only tangentially relevant to the Punitive Judgment at issue here. In other words, the challenges the defendant makes must address the reasons for the punitive damages much more so than the reasons for his loss on the merits to be even considered as a basis for any potential finding that the proceedings deprived him of due process, were fraudulent or were from a tribunal whose integrity could be called into doubt.

VI. Discretionary non-recognition

A. Judgment obtained by fraud.

Defendant Bich argues that the proceedings in Canada were tainted by a "panoply of shocking irregularities" and seeks discovery in this proceeding on that basis, and thus denial of the motion for summary judgment.

When seeking to avoid recognition on the basis of fraud, ""[t]he fraud must relate to matters other than issues that could have been litigated and must be a fraud on the court.' Overmyer v. Eliot Realty, 83 Misc 2d 694, 371 N.Y.S.2d 246, 258 (1975)" (Fairchild, Arabatzis & Smith, Inc. v Prometco (Produce & Metals) Co., Ltd., 470 F Supp 610, 615 [SDNY 1979]).

Seeking denial of recognition on the basis of fraud cannot become a challenge to the merits of the action that resulted in the judgment: "[A]llegations [which] attempt to challenge the merits of the action [ . . . ] are issues which are foreclosed to the recognition court once jurisdiction is found (CPLR 5303)" (Porisini v Petricca, 90 AD2d 949, 950 [4th Dept 1982]).

"Historically, New York courts have accorded "recognition to the judgments rendered in a foreign country under the doctrine of comity ... [a]bsent some showing of fraud in the procurement of the foreign country judgment or that recognition of the judgment would do violence to some strong public policy of this State" (Greschler v. Greschler, 51 NY2d 368, 376, 434 N.Y.S.2d 194, 414 N.E.2d 694 [1980] [citation omitted] ). The public policy inquiry rarely results in refusal to enforce a judgment unless it is "inherently vicious, wicked or immoral, and shocking to the prevailing moral sense" (Intercontinental Hotels Corp. [Puerto Rico] v. Golden, 15 NY2d 9, 13, 254 N.Y.S.2d 527, 203 N.E.2d 210 [1964])" (Sung Hwan Co., Ltd. v Rite Aid Corp., 7 NY3d 78, 82 [2006]).

Initially, most of the allegations of "irregularities" are based solely on the representations of the Defendant. Obviously, if an application for recognition of a foreign judgment can be defeated based solely on representations of the party resisting recognition, then the entire statute is undermined. Thus, for equally obvious reasons, a showing of substance must be made.

Defendant Bich's claims regarding the irregularities concern four issues: Interference with a third-party witness; appointment of an independent lawyer who was allegedly not independent; alleged misconduct at depositions; and lies to conceal information.

Before examining those issues, however, it is important to point out that nowhere does Mr. Bich make the representation that any of those issues were raised by him with the Quebec Court or that Canadian law doesn't allow for any post-trial relief on any of the bases he raises. To the contrary, part of the record here is an application by Mr. Bich for leave to appeal (in Canada) the Canadian Trial Judgment solely on the issue of the trial judge's finding of "abuse" by him in litigating that action, which appeal was denied. Via that appeal, not only did he fail to seek reversal of the underlying loss of the case, but he never raised the above-referenced "irregularities" on that appeal. All of his instant grievances can be described as merely re-argument of a case he lost.

For example, in addition to the "irregularities," he alleges that false testimony was given at trial, that various documents filed in the Quebec court undermine representations made elsewhere in the Quebec proceedings and that rulings by the Quebec Court were not favorable to him. The invitation to this Court, simply put, is to re-try the matter. The fact that, at most, Mr. Bich had material useful for cross-examination does not justify rejecting the concept of comity.

Further, important to recognize in any discussion of a challenge to the Punitive Judgment is that Mr. Bich cannot avoid that Judgment by merely citing irregularities in the Quebec proceeding. Even if those irregularities did exist and could constitute "fraud," in order to create an issue of fact to overcome the instant summary judgment motion, Mr. Bich would have to establish that the Punitive Judgment that he now contests—not just the Trial Judgment dismissing his claims—was impacted by those irregularities. Without that important element of causation, there is no basis to deny enforcement of the Punitive Judgment.

As to the particular "irregularities" Mr. Bich now raises, none form the basis for a finding of discretionary non-recognition:

Interference with third-party witness: Mr. Bich complains that in the Quebec discovery process undertaken before the trial there, a law firm representing the Canadian Defendants obstructed discovery by, among other things, falsely representing that they represented a key player in the commercial dispute — Lyme Timber — when they did not. Yet, that issue was presented to the Quebec Court and ruled upon. The fact that Mr. Bich doesn't like the outcome does not constitute a "fraud." A fraud is one in which a fact was concealed. Mr. Bich brought the allegation before the Quebec Court. It was not concealed.

Appointment of an independent lawyer who was allegedly not independent. Again, the allegation does not establish a causal connection to the judgment sought to be avoided. Mr. Bich claims that an attorney who was appointed as an independent arbiter of discovery disputes may have had a conflict of interest at the time appointed, which may have caused that attorney to not faithfully discharge her duties, which may have resulted in documents being withheld. Much of the allegations are based upon "information and belief." The allegations are patently insufficient to support avoiding the judgment. And, equally importantly, the failure to explain why these allegations have not been brought before the tribunal that granted the judgment goes without explanation by Mr. Bich.

Alleged misconduct at depositions. Bich's complaints about the conduct of depositions held before the trial in the Quebec court serve not to bolster Bich's arguments but undermine them. If such a relatively minor "irregularity" can be put forward in this proceeding as a basis for non-recognition, then it is apparent that virtually no foreign judgment could ever pass muster.

Lies to conceal information. Bich's allegation "upon information and belief" that Pichette and Harpur lied during the Quebec discovery process and during trial is by definition insufficient to sustain the burden of proof necessary to overcome a summary judgment motion. Nor is it sufficient to establish the necessary showing to conduct further discovery. "To succeed in its request that defendant's motion for summary judgment be denied pending further discovery (see CPLR 3212[f] ), plaintiff was obliged "to provide some evidentiary basis for its claim that further discovery would yield material evidence and also 'demonstrate how further discovery might reveal material facts in the movant's exclusive knowledge' " (Rochester Linoleum & Carpet Ctr. Inc. v. Cassin, 61 AD3d 1201, 1202, 878 N.Y.S.2d 219 [2009], quoting Scofield v. Trustees of Union Coll. in Town of Schenectady, 267 AD2d 651, 652, 699 N.Y.S.2d 570 [1999]; see Jackie's Enters., Inc. v. Belleville, 165 AD3d 1567, 1569, 87 N.Y.S.3d 124 [2018])" (Arthur Brundage Inc. v Morris, 189 AD3d 2032, 2032 [3d Dept 2020]).

It is noteworthy as well that many of the exhibits attached to the answer to support Bich's claim of fraud are from the trial and litigation record itself. Bich's grievance with the Canadian Court is obviously one where he strongly disagrees with the outcome. He presents nothing but his own statement to support the claim that any evidence was withheld from the Quebec Court, except "upon information and belief" and representations that he needs further discovery to find it. But even if evidence did exist and was withheld, the failure to seek redress in the Quebec judicial system remains without explanation.

Just one example of the weakness of Bich's argument is contained in the following sentence in his answer (paragraph 212): "Despite the overwhelming evidence demonstrating the parties had in fact entered into an exclusivity agreement and that the Pichette Group repeatedly breached that agreement by secretly pursuing alternate bid partners, the Trial Judgment contained the remarkable findings that the parties never entered into an exclusivity agreement." In other words, Bich presented his case, the Court heard his arguments, and he lost. This does not support non-recognition of the judgment.

B. Judgment obtained without due process

Due process is not violated merely by irregularities in a judicial process. It is only when those irregularities become of such a substantial nature and the opportunity to address them is not provided that one can conclude that a due process violation may have existed. Even in matters of personal liberty, perfection is not guaranteed. "A criminal defendant is entitled to a fair trial, not a perfect one. Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)" (State v Whaley, 290 SC 463, 465, 351 SE2d 340, 341 [1986]).

In a civil matter,

"Due process has been defined as an orderly proceeding with notice and an opportunity to be heard. It is not a guarantee against erroneous or unjust decisions by a court which has jurisdiction of the parties and subject matter and a constitutional question is not presented where a court may have misconstrued the law or committed an error for which its judgment should be reversed. (Kazubowski v. Kazubowski (1970), 45 Ill.2d 405, 259 N.E.2d 282.) Due process is not denied when a party fails to avail himself of the opportunity to be heard after it is offered to him. (First Lien Co. v. Markle (1964), 31 Ill.2d 431, 202 N.E.2d 26.) It is not a guarantee that the opportunity to be heard will be conducted entirely free from error, but rather provides a procedure for review and correction of such errors as may occur. (Rhodes v. Anderson (1976), 39 Ill.App.3d 208, 349 N.E.2d 113)."

Grant, Schon, Wise & Grant, P.C. v R.W. Borrowdale Co., 114 Ill App 3d 89, 92-93, 448 NE2d 574, 577 [Ill App Ct 1983].

Bich's failure to seek relief from the Canadian courts for many of his grievances means not so much that he was deprived of due process, but merely failed to take advantage of it. "A mere error of law does not deprive the individual of property without due process of law or raise a constitutional issue if adequate provision for the review of the offending judicial decision is available. This principle, [has been] long recognized by both Congress and the courts[ . . . ]" (Diggs v Pennsylvania Pub. Util. Commn., 180 F2d 623, 626-27 [3d Cir 1950]).

c. Integrity of the Canadian Court.

Bich alleges a single ex-parte communication by the Quebec trial judge and his opposing parties. He then describes a reference the Quebec judge made off the record as to the substance of that conversation. This single incident, without any corroboration, is simply insufficient to establish a lack of integrity of the Court or the process.

d. A defamation judgment.

The more salient issue raised in this proceeding is the claim that the punitive damages judgment is a "defamation judgment" under CPLR § 5304. If it is, then the Court must examine whether protections for "freedom of speech and the press" were provided that are equal to or greater than those provided by the New York and United States constitution and the burden shifts to the party seeking recognition of the judgment to prove the foreign venue's compliance with free speech and press requirements. If it is not a "defamation judgment" then no such analysis is necessary.

No reading of the punitive damages judgment can be made without noting the Canadian Court observed that the proceedings — in particular, language denigrating the Quebec defendants - were reported on by the Canadian press. Specifically, the Court in Canada wrote:

"s. However, [the legal fee] award will not compensate Defendants for the public allegations of dishonesty that were made against them. [93] Moreover, why would Plaintiffs make these allegations of misrepresentation, dishonesty, scheming and bad faith? They were unnecessary to advance their claim, which does not claim any amount in damages resulting from the alleged bad faith of Defendants. [94] The essence of Plaintiffs' claim is a breach of Defendants' undertaking to make a joint bid with Plaintiffs and of their alleged undertaking to collaborate exclusively with Plaintiffs to prepare the bid. Hence, Plaintiffs only needed to present their allegations in a manner that would have allowed the Court to consider whether an exclusivity agreement had been agreed to in August 2013 and whether a joint bid agreement had indeed been concluded between the parties. Unfounded and unsubstantiated allegations around Defendants' conduct were not necessary. What is more, at trial Plaintiffs did not rely on the bad faith of Defendants to put forward their claims around these two alleged agreements, but rather on Mr. Bich's understanding of an August 22, 2013 phone conversation on exclusivity and of the September 3 email from Mr. Harpur. [95] Business dealings do not always go the way one or other party intended, but that does not give licence to disparage the other party with unsubstantiated, harmful and frivolous allegations. 3.2.2

[ . . . ]

In considering these words, one must remember two things. The judgment was made without any evidence being offered, taking the allegations as true and where Plaintiffs alleged: "que les faits, tenus pour avérés, établissent le comportement malhonnête des défendeurs et leur violation du devoir de loyauté".27 [98] As the Court has said, at trial Plaintiffs didn't come close to proving that Defendants had breached any duty of loyalty or that they had engaged in dishonest conduct. [99] More importantly, Justice Moore's affirmation that Defendants should suffer only a minor inconvenience from the pre-inscription was clearly not born out by the evidence that was ultimately presented to the Court. The inconvenience was significant, as the conservation plan for the property and the fund-raising plan had to be put on hold. The raison-d'être for Defendants' purchase of the property could not be fully achieved until the judgment of the Court was rendered. Moreover, in large measure, Plaintiffs were aware of the conservation goal that Defendants had for the property.28 [100] Defendants' right to peaceable use of their property was clearly affected by what Justice Moore recognized as an audacious demand on the part of Plaintiffs!

[ . . . ]

But this is not the element that the Court finds the most important. It is the use of exaggerated unfounded language in a public document, language that was then picked up by the press to the detriment of Defendants, particularly Mr. Pichette." (NYSCEF Doc. No. 12.)

Mr. Bich argues here that the Quebec Court's language and reference to the press reporting on the language used in his Canadian pleadings turned what would be a sanction for frivolous litigation into a "defamation judgment."

Mr. Bich cites numerous cases which apply a definition of defamation in the context of differentiating between tortious interference with contract and defamation. Mr. Bich starts with the proposition that the elements of a defamation cause of action encompass the Quebec Court's judgment, citing the following:

"[T]he gravamen thereof is the alleged injury to plaintiff's professional reputation. As a matter of law, these causes of action sound in defamation since the latter tort is 'defined in terms of the injury, damage to reputation, and not in terms of the manner in which the injury is accomplished' (see Morrison v National Broadcasting Co., supra, p 458)" (Kartiganer Assoc., P. C. v Town of Newburgh, 57 AD2d 857, 858 [2d Dept 1977]).

Thus, Mr. Bich argues, the observation in the Quebec judgment that Mr. Pichette's reputation was harmed by the frivolous accusations qualifies it as a "defamation judgment."

The weakness in Mr. Bich's argument is that while the definition of defamation is a broad one when applied in that context, the existence of cases where a tortious interference is not deemed defamation establishes that the defamation definition is not without limits — that is, when the "gravamen" of the claim is one for economic harm. In other words, when the most significant part of the complaint alleges economic harm, it is not a defamation action. There is not a requirement, however, that the complaint be exclusive of reputational harm claims.⁴ Thus, not all harm to reputation is encompassed in the term defamation.

"Although plaintiff's fourth cause of action includes allegations that Robertson made defamatory statements about him, the gravamen of this claim is not reputational injury, but economic injury resulting from Robertson's alleged interference with the job offer previously extended by the Transportation Council. Accordingly, inasmuch as the alleged injury concerns an alleged harm to plaintiff's economic interests, we find that the three-year statute of limitations applicable to a tortious interference with economic opportunity claim applies to plaintiff's fourth cause of action and, as such, Supreme Court erred in dismissing said claim as time-barred (see CPLR 214[4]; Ullmannglass v. Oneida, Ltd., 86 AD3d at 828, 927 N.Y.S.2d 702; Classic Appraisals Corp. v. DeSantis, 159 AD2d 537, 537—538, 552 N.Y.S.2d 402 [1990]; compare Ramsay v. Mary Imogene Bassett Hosp., 113 AD2d 149, 151—152, 495 N.Y.S.2d 282 [1985], appeals dismissed 67 NY2d 608, 502 N.Y.S.2d 1026, 494 N.E.2d 113, 67 NY2d 1028, 1986 WL 404556 [1986])." Kopli nka-Loehr v County of Tompkins, 189 AD3d 2039, 2041 [3d Dept 2020]. (emphasis added).

What is obvious here is not that the Quebec Punitive Judgment was a penalty imposed for damaging a reputation, but a penalty imposed for improperly using the Canadian Courts. The Quebec Court clearly found that it was used not as a forum to prove wrong-doing and receive compensation, but to hurl insults and impose harm without justification. The "reputational harm" was among a slew of other wrong-doing by Mr. Bich found by the Court, just some of which is in the following list:

• Pursuing an unfounded case that was dependent on documents he claimed evidenced an agreement. "Had he given the reading of a reasonable person to these documents, Mr. Bich should have realized this. Only temerity could have led him to push his action forward in the way that he did [ . . . ]. Conduct laced with temerity may be abusive [ . . . ]."

• "[T]he Court needed to hear 11 days of evidence and 4 days of argument only to find out at the end of the day that the money the Bich group needed to make the bid was not available." In other words, the Court found that Mr. Bich pursued a claim that he was denied an opportunity to bid on the property by the defendants when all along he did not have the ability to do so.

• Among other things, Mr. Bich's "far-fetched interpretation of [an email]" did not justify the case and "the trial should not have gone forward."

• The Quebec Court found that it was apparent that the litigation was "abusive" based on the "far-fetched" interpretation of an email and that Mr. Bich continued to pursue the manner even after he knew he "would not produce the witnesses to prove the two key elements of their case."

• The Court described Mr. Bich's "subterfuge" around the financing available to purchase the property.

• Despite a witness clearly being in a position to have personal knowledge of the agreement that Mr. Bich alleged existed — a Mr. Desmarais — Mr. Bich never called him at trial, in fact, removing him from his witness list.

• Unnecessarily complicating the trial by "introduction of the restitution remedy."

• In what appears to be an equivalent to a lis pendens an "advance registration" had "an impact on Defendant's peaceable enjoyment of their property." The Court found "The inconvenience [of the advance registration] was significant, as the conservation plan for the property and the fund-raising plan had to be put on hold. The raison-d'etre for the Defendants' purchase of the property could not be fully achieved until the judgment of the Court was rendered."

Further, the conduct of a large portion of the proceeding was found to be abusive. The Court ordered a legal fee award representing the services performed for the defendant from 10 months before the trial through its conclusion.⁵ Surely that award was not based on any "reputational harm" but in legal fees incurred for what was deemed an "abusive" use of the legal system.

The finding of the Quebec Court was not so much that false statements were made about the Canadian defendants, but unnecessary statements. The Quebec Court saw itself as being used as a tool to impede the Defendants and hurl insults at them — as evidenced by the fact that the imposition of the title interference and the hurling of insults were tactics both unnecessary and pursued not with the intent of seeking justice, as the accusations did not, in fact, find their way into the case presented by Mr. Bich at trial. The Canadian judgment in question comports with United States law as well. It is the policy of this state, many other states and the federal courts not to allow the justice system to become a graffiti wall for invective.

"The authority to protect persons from scandalous or defamatory material has been entrusted to the courts for well over a century. In fact, this notion was first introduced as Rule 26 of the Rules of Practice for the Courts of Equity of the United States, adopted by the United States Supreme Court during the January Term of 1842. See 210 U.S. app. at 508 n. 1, 516—17 (1906). The substance of Equity Rule 26 directed a judge to order the expungement of any scandalous or impertinent material contained in a bill filed with the court. See 210 U.S. app. at 516—17. This directive was carried forward in the Equity Rules of 1912 as Equity Rule 21 and then implemented as Rule 12(f) of the Federal Rules of Civil Procedure. See 226 U.S. app. at 649, 654 (1912); Fed.R.Civ.P. 12(f) advisory committee's note. Although 11 U.S.C. § 107 does not specifically direct the Bankruptcy Court to expunge or strike scandalous or defamatory material from the record, the premise underlying § 107 is similar, if not identical, to that underlying Equity Rules 26 and 21 and Rule 12(f) of the Federal Rules of Civil Procedure.

A person within the courts' jurisdiction should not be subjected to scandalous or defamatory material submitted under the guise of a properly pleaded court document" (In re Phar-Mor, Inc., 191 BR 675, 678-79 [Bankr ND Ohio 1995]; see also, CPLR § 3204 (b)).

It is clear that the Quebec Court found that Mr. Bich had purposely used the pleadings in the case for purposes outside achieving a favorable result on the merits of his claim, but as a tool to otherwise inflict harm. The fact that the Quebec Court observed that he was at least somewhat successful in doing so does not make the Punitive Judgment into a judgment for defamation. It is a penalty imposed for the abuse of the Canadian legal system.

e. The SDNY ruling.

Noteworthy is that fact that the parties litigated the defamation issue in federal court. Mr. Bich invoked federal question jurisdiction in the Southern District of New York under the federal SPEECH Act. The SPEECH Act, much like the New York provisions, prohibits a "foreign judgment for defamation" from being recognized without analysis of free speech protections. 28 USCA § 4102. The SPEECH Act provides a definition of defamation as follows:

"(1) Defamation.--The term "defamation" means any action or other proceeding for defamation, libel, slander, or similar claim alleging that forms of speech are false, have caused damage to reputation or emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or condemnation of any person." (28 USCA § 4101.)

The District Court found the Canadian judgment did not invoke the SPEECH Act and ordered the case remanded to the New York courts.

Mr. Bich argues that the District Court ruling presented a different issue than is presented here, arguing the New York definition of a "defamation judgment" is different than a "judgment for defamation" under the SPEECH Act. While the finding by the District Court does not serve as collateral estoppel or res judicata, it is instructive.

Mr. Bich argues that by using the phrase "defamation judgment" as opposed to "judgment for defamation" the New York statute encompasses judgments that would not be protected under the SPEECH Act. Bich attempts to differentiate the Federal Court's ruling from the issues presented here arguing that the SPEECH Act is concerned with the nature of the underlying cause of action or claim resulting in the judgment, while the New York statute "focuses on the output of the foreign claim, not the process that generated it." The Court does not see any daylight between the two statutes. Regardless, however, the Federal Court found that even if the analysis was applied to the judgment, regardless of the label applied to the allegations made that resulted in the judgment, the result was the same — the judgment was for an abuse of process in the Canadian courts. But further, Judge Seibel found that any ambiguity in the language would result in an analysis of the legislative history of the SPEECH Act which was meant to prevent "libel tourism." Libel tourism is the use of a foreign court by an aggrieved individual to obtain a judgment for harmful communication which would not be available in this country because of free speech protections. The prevention of libel tourism is also the underlying motivation for the enactment of the free speech protections under CPLR § 5304. "With increasing frequency, individuals who believe that they have been defamed by authors of books or other publications who reside in New York are filing lawsuits in foreign jurisdictions that do not afford the same protections for speech as provided under the First Amendment. [ . . . ] This allows individuals to "shop around" for a favorable foreign jurisdiction in which to bring a lawsuit." "This bill seeks to thwart the efforts of those who engage in such "libel tourism." New York Bill Jacket, 2008 S.B. 6687, Ch. 66 (Governor's memo).

The issues in this case do not implicate libel tourism. Travelling to a foreign country to invoke its jurisdiction and use its court system for the purpose of communicating derision and retreating to this country to avoid the implications is not libel tourism — in fact, it is the opposite.

The Court finds that the SDNY finding in Harpur v. Bich, 2024 WL 4930286 (SDNY Dec. 2, 2024) supports the analysis of this Court.

For the foregoing reasons, therefore, it is hereby,

ORDERED, that the Plaintiff's motion is GRANTED and the foreign judgment of the Superior Court of Canada, Province of Quebec, District of Montreal dated August 31, 2023, is granted recognition in New York to the extent of the penalty/punitive damages of $175,000 CAD, plus interest as may be applicable, and it is further,

ORDERED, that the Plaintiff is granted leave to provide for costs and disbursements in the New York judgment as may be taxed by the Clerk, and it is further,

ORDERED, that the parties are directed to confer within 10 days of the date of this order to determine if there is a dispute as to the application of interest and conversion to US Dollars (Jud. Law § 27) and submit a proposed judgment reflecting such agreement by October 24, 2025, and it is further,

ORDERED, if the parties cannot agree on the above, each shall submit a proposed judgment on or before October 24, 2025, along with a memorandum of law and any necessary affirmations in support of their proposed calculation, and it is further,

ORDERED, that the Plaintiff's time for filing responsive papers to the claims raised in Defendant's answer is extended until 30 days from the date of this Decision and Order per the parties' stipulation.

Dated: October 16, 2025

Poughkeepsie, NY

ENTER:

Hon. Thomas R. Davis, J.S.C.

Appendix

Documents considered:

NYSCEF documents:

20, 21, 23, 24, 25, documents related to removal and venue change

37 — 137 opposition papers including answer and exhibits.⁶

139-151 moving papers.

152 — stipulation

158 — memorandum of law

161-162 — letter submissions per Court invitation concerning SDNY ruling.

FOOTNOTES

1.   "[I]f you have never picked up a fly rod before, you will soon find it factually and theologically true that man by nature is a damn mess." Norman McLean, A River Runs Through It and Other Stories, University of Chicago Press (1976).

2.   The background and descriptions are from exhibits to defendant's answer with counterclaims.

3.   See attached appendix for documents considered on this motion (sequence 1).

4.   Gravamen is defined as "the essence or most serious part of a complaint or accusation." New Oxford American Dictionary, 3rd Edition.

5.   Canada is, like New York, not a "loser pays" jurisdiction. The legal fee award was made only on the basis that the lawsuit was "abusive."

6.   Pursuant to stipulation, the answering papers submitted to the original New York County motion were deemed responsive to the motion filed in Dutchess County.

Thomas R. Davis, J.