CANADA Law and Practice Contributed by: John Pirie, Matthew Latella, David Gadsden and Christina Doria, Baker McKenzie
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, to challenge enforce - ment due to fraud going to the merits of the case, the moving party must show that the fraud was not dis - coverable 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 addition, if
the respondent chose not to participate in the for - eign proceeding, they may be barred from challeng - ing 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. 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. 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 Reciprocal Enforcement of Judgments Act, RSO 1990 c R.5 and the Reciprocal Enforcement of Judgments (UK) Act,
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