ONTARIO OTTAWA TORONTO CANADA FOREIGN PROVINCIAL JUDGMENT RECOGNITION INTERJURISDICTIONAL ENFORCEMENT LAWYERS LAW FIRM COUNSEL
The firm enforces throughout Ontario the court, tribunal and arbitration judgments and orders of other countries and provinces, especially judgments and awards from the United States of America and Quebec. All the firm’s litigation lawyers hold Quebec civil law degrees and practice in French, in addition to holding common law degrees. The firm has extensive transnational law practice experience.
The firm’s senior barrister Gordon S. Campbell has served with the Department of Justice Canada practicing transnational and mutual legal assistance law, as well as represented Canada diplomatically with international organizations.
FACT AND FICTION OF FOREIGN JUDGMENT ENFORCEMENT IN ONTARIO
Why Enforce Foreign Judgments?: To be effectively implemented, any court order needs to apply to the place where the person(s) subject to the judgment are located, where assets subject to the judgment can be found, or where activities subject to the judgment are taking place. So a judgment for child custody must be enforced where the children are located, a judgement for a debt of $500,000 must be enforced where the debtor owns real or personal property of any value, and an order injunctively prohibiting someone from continuing to publish libellous comments on the Internet must be enforced where that publication is taking place.
The Fiction of Foreign Judgment Enforcement: You can bring any foreign judgment to a court counter in Ontario - civil (monetary & non-monetary), family, arbitration - get it stamped, file it, and simply enforce it yourself. Quick, cheap, and court appearances or lawyers needed.
The Reality of Foreign Judgment Enforcement: Every legal jurisdiction - be it a country or a province or a state - has its own legal system, its own courts, and its own judges, which may or may not recognize judgments from other legal systems, courts and judges. The more dissimilar the legal systems, the harder it may be to convince the place where the judgment recognition and enforcement are sought to accept the foreign court order without relitigating the issues in a frustrating exercise akin to starting all over again from square one.
The Bright Spot of Foreign Judgment Enforcement: The Ontario Superior Court of Justice has as of 2019 established that foreign judgments can be recognized and enforced by way of much quicker and less expensive “Applications” (somewhat similar to motions proceeding by way of affidavits and exhibits) rather than lengthy and costly “Actions” (which would result in a full-blown trial on oral evidence).
ONTARIO’S LAW OF FOREIGN JUDGMENT RECOGNITION IN 5 PRINCIPLES
Mr. Justice Perell (long a leading writer and teacher on Ontario civil procedure) in May of 2019 in Dead End Survival, LLC v. Marhasin, 2019 ONSC 3453 penned the definitive judgment summarizing the principles of foreign judgment recognition and enforcement in Ontario.
Principle #1 - Foreign Debts will Be Enforced Absent Fraud, Natural Justice or Public Policy Violation - “At common law, a foreign judgment is, in effect, a debt that can be enforced by a cause of action to claim payment of the debt, and absent evidence of fraud or of a violation of natural justice or of public policy, the enforcing court is not interested in the substantive or procedural law of the foreign court that granted judgment.”
Principle #2 - Defendant May Not Relitigate Foreign Trial Issues - “In an action to enforce the foreign judgment, the Ontario court will not relitigate the underlying litigation that gave rise to the judgment, and if the foreign judgment is proven and is final, the Ontario court will enforce the foreign court’s judgment with a judgment of its own.”
“Given that the domestic court will not relitigate the substantive merits of the foreign judgment and although the creation of new defences is possible, there is only a small list of defences to the enforcement of a foreign judgment.”
Principle #3 - Foreign Non-Monetary Judgments Also Enforceable - “Foreign non-monetary judgments, including judgments for equitable relief, such as specific performance or an injunction are also enforceable. For a foreign non-monetary judgment to be enforceable, it must have been rendered by a court of competent jurisdiction and must be final, and it must be of a nature that the principle of comity requires the domestic court to enforce it. The domestic court retains the discretion that underlies equitable orders and may exercise that discretion in deciding whether to enforce a foreign equitable order.”
Principle #4 - Must be Attornment to Foreign Jurisdiction or Real & Substantial Connection to Dispute - “Subject to the defences, a Canadian court will enforce a foreign judgment if the defendant attorned to the jurisdiction of the foreign court or if the foreign jurisdiction had a ‘real and substantial connection’ to the dispute. The real and substantial connection is the overriding factor in the determination of the jurisdiction of the foreign court, and once it is determined that a foreign court properly assumed jurisdiction, a foreign judgment is prima facie enforceable.”
Principle #5 - Foreign Judgment Need Not Be From Most Real and Substantially Connected of All Possible Jurisdictions - “In deciding if the dispute had a real and substantial connection to the foreign jurisdiction, the domestic court must find that a significant connection existed between the plaintiff’s cause of action and the foreign jurisdiction. In determining whether there is a real and substantial connection, the domestic court should consider the connections between the subject matter of the action, the alleged wrongdoing, the place where the damages are suffered, as well as with the transactions of the parties and with the action. The connection must be real and substantial but not necessarily the most real and substantial connection of all possible jurisdictions that might have a connection to the dispute. The real and substantial connection test is not a rigid test, and must ultimately be guided by order and fairness, as opposed to a mechanical counting of contacts and connections.”
THE FIRM’S QUALIFICATIONS TO ENFORCE FOREIGN JUDGMENTS IN ONTARIO
Gordon S. Campbell, the firm’s Senior Barrister, holds degrees in International Relations (Toronto), Common Law (McGill) and Civil Law (McGill), has served with Global Affairs Canada, practiced transnational law with the Department of Justice Canada, collaborated with APEC, the OECD, and G8/G20, and has extensive transnational legal experience. He also served as a Federal Crown Prosecutor throughout Canada focussing on proceeds of crime, money laundering, tax evasion, smuggling, extradition, mutual legal assistance and environmental offences.
The firm enforces foreign judgments and orders of all types throughout all regions of Ontario. No charge for travel time is made for such work, making the firm very cost competitive for judgment enforcement to big city firms potentially having high downtown overheads. But with the firm’s Senior Barrister having commenced his practice in Toronto on Bay Street, and litigated hundreds of trials and appeals up to the level of the Supreme Court of Canada, clients still benefit from a wealth of experience at the firm, together with the firm using the most advanced technology available to stay in constant communication and advance the cases of clients no matter where in the world the firm’s clients might be located.