CANADA Law and Practice Contributed by: John Pirie, Matthew Latella, David Gadsden and Christina Doria, Baker McKenzie
tion, if the respondent chose not to participate in the foreign proceeding, they may be barred from chal - lenging enforcement in Canada on the ground that the evidence given in the foreign proceeding was fraudu - lent and the fraud could not have been discovered by reasonable diligence. Denial of Natural Justice In order to establish the defence of a denial of natu - ral justice, the debtor must show that the applicant obtained the judgment in a manner inconsistent with Canadian notions of fundamental justice ( Beals v Saldanha , 2003 SCC 72). The following safeguards form the Canadian notions of fundamental justice: • adequate notice of the claim; • an opportunity to defend; • judicial independence; and • ethical rules governing the behaviour of the partici - pants. Contrary to Public Policy Canadian courts will also refuse to enforce a judgment that is contrary to public policy, but only in exceptional circumstances ( Beals v Saldanha , 2003 SCC 72). The public policy defence will not bar enforcement of a for - eign judgment for the sole reason that the claim in the foreign jurisdiction would not yield comparable dam - ages in Canada. The public policy defence is directed at the concept of repugnant laws, not repugnant facts. Recent Ontario Superior Court authority confirms that the public policy defence will be applied narrowly and that it is not a remedy to be invoked lightly. The Ontario Court of Appeal recently reinforced the narrow scope of these defences in Hilmer Motorsport GmbH v Mason , 2025 ONCA 875, upholding the rec - ognition and enforcement of a German default judg - ment, and confirming that an arbitration clause does not automatically negate the jurisdiction of a foreign court. An arbitration agreement is not self-enforcing, and a party must actively seek a stay of proceedings in the foreign forum; failure to do so removes any bar - rier to that court hearing the dispute. The decision reinforces that Ontario courts will not second-guess a foreign court’s jurisdiction where the parties agreed to that forum and had the opportunity to raise objec - tions but did not.
A party may also resist recognition and enforcement of a foreign judgment if the party seeking redress did not commence the enforcement proceedings or reg - ister the foreign judgment within the time limit pre - scribed by the applicable limitation periods. In Cana - da, limitation periods are created by statute and vary between provinces. In addition, the limitation period for the enforcement of foreign judgments varies, with the basic limitation periods in Canada usually ranging from two to six years. In Ontario, the limitation period to recognise and enforce a foreign judgment under the REJA and the Reciprocal Enforcement of Judgments (UK) Act, RSO 1990, c R.6 is six years from the date when the judg - ment was prescribed. Where there is no reciprocity between Ontario and the judgment jurisdiction, the general two-year limitation period will apply. The Ontario Court of Appeal recently confirmed that the limitation period in the enforcement of a foreign judg - ment begins to run from either the date on which: • the right of appeal regarding the judgment expires; The Ontario Court of Appeal has also confirmed that the statutory provision that no limitation period applies to a proceeding to enforce a court order only applies to domestic orders. It is important to obtain advice early on with respect to the applicable limitation period to enforce a for - eign judgment; failure to commence an application to enforce a foreign judgment within the prescribed time period may be fatal ( HMB Holdings Limited v Antigua and Barbuda , 2020 ONCA 12’ aff’d 2021 SCC 44) (see 3.1 Legal Issues Concerning Enforcement of Foreign Judgments ). • the appeal is decided; or • the appeal is dismissed. 4. Arbitral Awards 4.1 Legal Issues Concerning Enforcement of Arbitral Awards Canadian courts readily enforce both domestic and international arbitral awards, subject to limited grounds of refusal.
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