CANADA Law and Practice Contributed by: John Pirie, Matthew Latella, David Gadsden and Christina Doria, Baker McKenzie
3. Foreign Judgments 3.1 Legal Issues Concerning Enforcement of Foreign Judgments There are three routes to enforce foreign judgments in Canada: • at common law; Canadian courts will generally enforce a foreign mon - ey judgment under the following circumstances. • The court giving judgment is a judicial body or tribunal regularly established and exercising the jurisdiction conferred upon it by the relevant com - petent authority. • The court had proper personal and subject-matter jurisdiction according to Canadian rules regarding the conflict of laws. Jurisdiction is viewed as being properly taken if: (a) the court had proper in personam jurisdiction over the defendant; (b) there is a real and substantial connection between the foreign jurisdiction and the subject matter of the proceeding; or (c) the defendant attorned to or by contract agreed to the jurisdiction of the foreign court. • The foreign judgment is for a debt or a definite sum of money. • under legislation; or • pursuant to a treaty. Foreign Money Judgments • The judgment is final and conclusive with respect to the rights and liabilities of the parties to it so as to be res judicata in a foreign jurisdiction, although Canadian courts may recognise and enforce interlocutory orders as long as they meet the requirement of finality. For an interlocutory order to be recognised and enforced, the foreign court’s jurisdiction to vary or set aside the judgment must be exhausted. Canadian courts will not, however, enforce the fol - lowing. • Taxes and penalties – enforcing a judgment that is criminal, quasi-criminal or regulatory would offend the principles of territoriality, as the public law of a
country should not be applied beyond its territory ( Pro Swing Inc v Elta Golf Inc , 2006 SCC 52) (“ Pro Swing ”. • Indeterminate monetary orders – interim orders (whether for costs or damages) that do not meet the requirements of finality and clarity will not be enforceable, given that: (a) finality requires that a foreign order establish an obligation that is complete and defined; and (b) clarity means that someone unfamiliar with the case would be able to ascertain what is required to meet the terms of the order. Non-Monetary Relief A foreign judgment granting non-monetary relief (ie, declaratory or injunctive relief) may be recognised and enforced in Canada ( Pro Swing Inc v Elta Gold Inc , 2006 SCC 52). Such enforcement is possible where the foreign judgment was made by a court of compe - tent 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 called 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
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