CANADA Trends and Developments Contributed by: Carey Veinotte, Bojm Funt & Gibbons
By legislation Major Canadian provinces, such as British Columbia (COEA) and Ontario and others, have passed legisla - tion recognising each other’s judgments. Common law The common law test enunciated for enforcement in Canada of a foreign money judgment (ie, extra-provin - cial) is set forth in the seminal Morguard Investments Ltd v De Savoy e 1990 3 SCR 1440. In that case, the SCC enunciated the “real and substantial connection” test between the province where registration is sought and the foreign jurisdiction, being another province in Canada. The Court held that such a connection could be established even if the creditor had not attorned to the receiving province’s jurisdiction and even if the debtor did not explicitly do business in that province. The preferred procedure is for the creditor seeking to enforce its judgment extraterritoriality to file a State - ment of Claim (Ontario) or Notice of Civil Claim (British Columbia) in a court registry near the debtor’s assets. The claim does not need to go through the underlying facts of the dispute that led to the foreign judgment in any kind of exhaustive detail. Rather, the claim should set forth: • the fact of the foreign judgment itself; • the basis upon which registration is sought; and • that the foreign matter is final – all appeals have been exhausted by the debtor. In British Columbia, Alberta and Prince Edward Island, no notice is required in the province if, in the foreign jurisdiction, the debtor had notice of the underly - ing claim, and where any relevant appeal period has expired in the foreign jurisdiction. Attention must be paid to Canadian limitation statutes. For example, in Ontario there is a two-year limitation period that begins to run from the making of the final order in the foreign jurisdiction, to filing the claim seeking to register the judgment. Once there is a filed claim, and assuming there is proper service upon the debtor in a receiving juris - diction that requires service (which can become very complicated), the creditor moves forward on a sum -
in Canada). Receivers are vested with the powers of the court under the BIA; they are officers of the court. If there are sufficient assets upon liquidation to satisfy the judgment creditor, then the client has achieved its goal. If not, then the client may be left with pennies on its dollar, or often nothing. Foreign Judgments There are three methods of enforcing a foreign judg - ment in Canada: • by treaty; • by legislation; and • common law. “Foreign” judgments are those rendered in one prov - ince brought to another, or judgments rendered off - shore brought to Canada for enforcement. This article focuses mainly on money judgments but it is possible to register certain foreign judgments for non-monetary awards. Canadian courts will not enforce judgments for taxes and penalties or indeter - minate money orders. By treaty The Federal Government and Provinces in Canada co- operate with certain offshore foreign jurisdictions for the reciprocal enforcement of judgments. For exam - ple, federally, Canada and the UK have the Conven - tion for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters, ratified as the Canada-United Kingdom Civil and Commercial Judgments Convention Act, RSC 1985, c C-30. Canada is not a signatory to the Hague Conven - tion on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. As such, subject to another applicable treaty, a creditor must employ either the common law techniques discussed below or a relevant statute. British Columbia, again by way of the COEA, recip - rocates with other provinces, the UK, Australia and several US states to register British Columbia judg - ments and orders.
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