CANADA Law and Practice Contributed by: John Pirie, Matthew Latella, David Gadsden and Christina Doria, Baker McKenzie
Canada and the UK only applies to monetary judg - ments, leaving recognition of non-monetary UK judg - ments to the common law. When a Canadian court recognises a foreign judg - ment, it means that the Canadian court will treat the foreign judgment as effective and capable of being enforced. A foreign judgment recognised by a Cana - dian court may be enforced in the same manner as a domestic judgment. 3.2 Variations in Approach to Enforcement of Foreign Judgments Simple money judgments are the most straightforward to enforce. Non-monetary judgments may be enforced if comity requires it and if the Supreme Court’s analy - sis in Pro Swing , as referenced in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments , has been applied successfully. Non-monetary judgments include judgments to enforce: • an order for specific performance; • an injunction order; • an order establishing a constructive trust; • an order for declaratory relief; and • various orders in the context of insolvency. 3.3 Categories of Foreign Judgments Not Enforced Foreign judgments granted by courts without proper jurisdiction will not be enforced. The foreign court must have had a real and substantial connection with the litigants or the subject matter of the dispute, or otherwise had jurisdiction based on one of the “tradi - tional” bases, such as consent/attornment. Canadian courts will not recognise or enforce foreign judgments relating to foreign public laws, foreign tax - es and penal or quasi-criminal matters. In addition, as established by the Supreme Court of Canada in Beals v Saldanha , 2003 SCC 72, Canadian courts will refuse to recognise and enforce a foreign judgment if it: • was obtained by fraud going to the jurisdiction of the foreign court or new allegations of fraud that were not the subject of prior adjudication (eg, 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
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