CANADA Law and Practice Contributed by: John Pirie, Matthew Latella, Michael Nowina and Bryan Hsu, Baker McKenzie
5.2 Enforcement of Foreign Judgments A party seeking to enforce a foreign judgment would need to commence a proceeding for recognition and enforcement. In such enforcement proceedings, 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 foreign court had proper personal and sub - ject-matter jurisdiction according to Canadian rules regarding the conflict of laws. Jurisdiction is viewed as being properly taken if: (a) the foreign court had proper in personam juris - diction 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. • 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 if 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. Certain Canadian provinces have passed reciprocal enforcement of judgment statutes that apply to for - eign judgments. However, the scope of such legisla - tion varies from province to province and tends to be limited to other Canadian provinces, the UK, a few select US states and parts of Australia. 6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination Under the Canada Evidence Act, where a person is compelled to answer incriminating questions, that testimony cannot be used against them in future pro -
including contracts made in Ontario, torts committed in Ontario and claims in respect of real or personal property in Ontario. If the foreign litigant is resident in a country that is par - ty to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Com - mercial Matters (the “Convention”), compliance with the requirements of the Convention is mandatory. If the litigant resides in a country that is not party to the Convention, service must be carried out in accord - ance with the local rules of procedure in the jurisdic - tion within Canada in which the proceedings are com - menced. In an Ontario-based proceeding, this would include service in a manner provided by the rules of service in Ontario, or service in a manner provided by the law of the foreign jurisdiction where service is made, if service in that manner could reasonably be expected to come to the notice of the person to be served. 5. Enforcement 5.1 Methods of Enforcement There are a range of enforcement methods available to judgement creditors in Canada, including: • garnishment, by which a third-party, including an employer or other party who might owe money to the debtor, is required to pay such monies directly to the court or the creditor; • writs of seizure and sale for personal property, by which a government official in the form of a sheriff or other similar official is empowered to seize an asset; • a writ of seizure and sale for real property, by which a registration is filed against land, establishing a lien on the property, which can have the effect of preventing the debtor from selling or encumbering the property and which can lead to its sale; • conducting an examination in aid of execution, by which a creditor can require a debtor to disclose details assets, debts, income, etc, under oath; and • the appointment of a receiver, particularly if the debtor is attempting to conceal assets, or in more complex cases that call for such measures.
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