CANADA Law and Practice Contributed by: John Pirie, Matthew Latella, David Gadsden and Christina Doria, Baker McKenzie
Non-Monetary Relief A foreign judgment granting non-monetary relief (ie, declaratory or injunctive relief) may be recognised and enforced in Canada ( Pro Swing ). Such enforcement is possible where the foreign judgment was made by a court of competent jurisdiction, the decision was final and the nature of the judgment was such that comity required it to be enforced. However, quasi-criminal judgments such as a foreign contempt order may not be enforced. Duke v Andler In March 2022, the Supreme Court of Canada granted leave to appeal an unprecedented decision of the Brit - ish Columbia Court of Appeal allowing the enforce - ment of a German judgment against real property located in British Columbia. However, the appeal was discontinued and then closed. In that case ( Lanfer v Eilers , 2021 BCCA 241), the enforcement of the Ger - man judgment had initially been rejected by the British Columbia court of first instance, relying on a Supreme Court of Canada precedent dating back to 1932: Duke v Andler , 1932 SCR 734 (“ Duke ”). Duke stood for the widely accepted private inter - national law principle that Canadian courts will not enforce a foreign judgment that adjudicates title or interest to land in the domestic court’s territorial juris - diction. However, in Lanfer , the British Columbia Court of Appeal found that “a foreign order for specific per - formance implicating rights or interests in immovable property that complies with the requirements of Pro Swing is capable of being recognised and enforced in British Columbia”. In so finding, the British Colum - bia Court of Appeal effectively found that Pro Swing had “implicitly” overturned the rule in Duke . However, the matter was resolved before the Supreme Court of Canada could hear the ultimate appeal. Reciprocal Enforcement Certain Canadian provinces have passed reciprocal enforcement of judgment statutes that apply to for - eign judgments. However, the scope of such legisla - tion varies from province to province and tends to be limited to other Canadian provinces, the UK, a few select US states, and parts of Australia.
Where a provincial reciprocal enforcement of judg - ments statute applies to foreign judgments, the judg - ment may be enforced by registration. However, the provincial legislation does not alter the conflict of laws rules applicable to the recognition of foreign judgments. As a practical matter, while the legislation should be invoked when applicable, registration alone may not be satisfactory for enforcement purposes. The courts of each province are still required to take a supervisory role to ensure that the foreign judgment is enforceable in accordance with applicable Canadian law. Recently, the Supreme Court of Canada dealt with the application of Ontario’s Reciprocal Enforcement of Judgments Act, RSO 1990 c R.5 (REJA) in conjunction with the availability of “ricochet judgments”, where a creditor asks one province to recognise another prov - ince’s recognition of a foreign judgment ( HMB Hold- ings Ltd v Antigua and Barbuda , 2021 SCC 44). The Supreme Court of Canada affirmed the Ontario Court of Appeal’s refusal of an application for an order under the REJA to register a judgment from the Supreme Court of British Columbia, which had recognised a decision of the UK by way of a default judgment. Under Section 3 (b) of the REJA, judgments cannot be registered if the judgment debtor was not “carry - ing on business” within the jurisdiction of the court whose judgment was to be enforced. Although the REJA does not define what constitutes “carrying on business”, it is an established common law concept as part of the traditional bases of establishing jurisdic - tion, which the Supreme Court of Canada found was codified by Section 3 (b) of the REJA. The Supreme Court of Canada found that “carrying on business” requires an entity’s actual presence in a jurisdiction, in addition to a degree of business activity that is sustained for a period of time. Mere virtual pres - ence, such as through advertisement, is not enough. Actual presence within a jurisdiction could involve maintaining a physical office within or regularly visiting the territory of the jurisdiction and engaging directly with customers. In addition, an “indirect” actual pres - ence could mean that the physical premises of the entity are operated by an agent or other representa -
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