CANADA Law and Practice Contributed by: John Pirie, Matthew Latella, David Gadsden and Christina Doria, Baker McKenzie
based on material facts that were not previously discoverable and potentially challenge the evi - dence put before the foreign court); • is contrary to Canada’s concept of natural justice – the foreign court’s procedures did not allow for due process in the form of adequate notice and suffi - cient opportunity to be heard; or • would be contrary to public policy – ie, to the Canadian concept of justice, which turns on whether a foreign law is contrary to Canada’s view of basic morality such that enforcement of the monetary judgment would shock the conscience of a reasonable Canadian. 3.4 Process of Enforcing Foreign Judgments To recognise and enforce a foreign judgment at com - mon law, the party seeking such redress should com - mence a proceeding. The originating process must be served personally or by an alternative to personal service on the debtor. If the judgment debtor is domiciled outside the prov - ince where enforcement is sought, the method of ser - vice will depend on whether the debtor is located in a country that is party to the Hague Convention of Ser - vice Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. If the material facts are not in dispute, the foreign judgment may be enforced summarily, based on affidavit evidence demonstrating that the judgment was obtained from a court with proper jurisdiction and that none of the defences to enforcement were established on the facts. If the judgment debtor resists enforcement because of credibility issues or otherwise requires a trial, the court may decline to decide the matter on a summary basis. 3.5 Costs and Time Taken to Enforce Foreign Judgments If the enforcement of a foreign judgment is unop - posed, enforcing the judgment should be by default proceedings and therefore simpler. Foreign defend - ants tend to have a maximum of 60 days from the service of an originating process to defend the pro - ceeding. Where there is no statutory regime to register the foreign judgment, the length of time to enforce a foreign judgment can vary significantly, depending on
whether the enforcement proceeding is opposed and, if so, the nature and extent of the defences raised. That said, generally speaking, enforcement proceed - ings are much more streamlined and efficient than reg - ular lawsuits – given that the merits of the dispute are not re-litigated before the Canadian courts. Therefore, the scope of the relevant documents and issues to be resolved is much narrower. A straightforward enforce - ment proceeding that is defended may be brought to court for a dispositive hearing within 12 months. More complex matters may take longer. The legal fees and disbursements for an enforcement proceeding can also vary widely, depending on the complexity of the matter and the specific defences raised. Canadian court filing fees are minimal; how - ever, other disbursements relating to enforcement can vary substantially. 3.6 Challenging Enforcement of Foreign Judgments The recognition and enforcement of foreign judgments may be challenged only on narrow grounds. If the for - eign court had proper jurisdiction over the foreign pro - ceeding and the judgment was final and conclusive on its merits, it cannot be challenged for error of fact or law. Canadian courts will not consider or re-evaluate the merits of the case. The grounds upon which the enforcement of a foreign judgment can be challenged in Canada are: • fraud; • a denial of natural justice; and • that enforcement would be contrary to Canadian public policy. Fraud If the foreign court assumed jurisdiction as a result of fraud, Canadian courts will refuse to recognise and enforce the judgment. However, in order to challenge enforcement due to fraud going to the merits of the case, the moving party must show that the fraud was not discoverable before obtaining the judgment in the foreign jurisdiction. In other words, if a party detects fraud in the original proceedings, that party must raise those concerns in the original proceedings. In addi -
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