CANADA Law and Practice Contributed by: John Pirie, Matthew Latella, David Gadsden and Christina Doria, Baker McKenzie
2. Domestic Judgments 2.1 Types of Domestic Judgments
• whether there is an alternative claim for damages; • whether damages would be a satisfactory remedy; • the ease or difficulty in calculating damages; • the presence or absence of a willing purchaser; • the balance of convenience or potential harm to each party; • whether the interests of the party seeking the CPL could be protected by another form of security; and • whether the moving party has prosecuted the pro - ceeding with reasonable diligence. In a recent decision, the British Columbia Court of Appeal reversed a decision that cancelled a CPL based on a “purchaser’s lien”. If a vendor breaches a purchase contract for property, the purchaser may rescind and register a lien on title of the vendor’s land to secure any deposit. The decision confirms that this type of lien creates an interest in land that allows for a CPL to be filed. Orders for the preservation of specific property or funds The rules of the court in each Canadian province per - mit the parties to obtain orders for the preservation of property that is the subject matter of a proceeding. In Ontario, for example, the rules permit the court to make an interim order for the custody or preservation of the property in question or property relevant to an issue in the proceeding, and may authorise entry on or into the property. To obtain such an order, the moving party must show that: • the asset sought to be preserved constitutes the very subject matter of the dispute; • there is a serious issue to be tried regarding the plaintiff’s claim to the asset; and • the balance of convenience favours granting the relief sought by the applicant or moving party (ie, preserving the asset). Similarly, where the right to a “specific fund” is in question, the court may order the fund to be paid into the court or otherwise secured on such terms as are just. Such orders are subject to the same three-step test outlined earlier.
All judgments are court orders, but all court orders are not necessarily judgments. Judgments dispose of a proceeding on its merits with finality, whereas orders can be interlocutory or interim in nature, with the final determination to follow. Judgments can be granted on default if the proceeding is not defended within the timeframe stipulated in the rules of the relevant prov - ince. In some circumstances, such default judgments can be set aside by the court, provided the defendant can satisfy certain tests (typically, an explanation for the delay, arguable defence, etc). Money judgments are the most common form of judg - ments. However, courts can also grant declaratory relief, permanent injunctive relief and other remedies, whether based in statute or the common law. Non- monetary remedies that can be ordered include: • specific performance; • vesting orders; • an accounting of ill-gotten profits; • granting title to assets; • a range of insolvency-related orders under the Bankruptcy and Insolvency Act, RSC, 1985, c B-3 and Companies’ Creditor Arrangement Act, RSC 1985, c C-36; and • orders ancillary to corporate reorganisations or other transactions, including plans of arrangement. 2.2 Enforcement of Domestic Judgments Each province in Canada has its own legislation gov - erning the enforcement of domestic judgments. As there is substantial overlap across this legislation, this chapter focuses on the enforcement of domestic judg - ments in Ontario, Canada’s most populous province. The enforcement of an order for the payment of mon - ey is largely governed by the Rules of Civil Proce - dure RRO 1990, Reg 194 (“the Rules”), the Execution Act RSO 1990, c E 24 (the “Execution Act”) and the “Creditors’ Relief Act 2010, SO 2010, c 16, Sched 4 (the ”Creditors’ Relief Act”). The enforcement of an order that requires a party to do or abstain from doing an act may be dealt with by
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