Enforcement of Foreign Judgments 2003

Fredericton, New Brunswick

10-14 August 2003

UNIFORM ENFORCEMENT OF FOREIGN JUDGMENTS ACT

(REVISED FINAL DRAFT AND COMMENTARY)

CIVIL SECTION

WORKING GROUP ON ENFORCEMENT OF FOREIGN JUDGMENTS

2002-2003 Working Group on Enforcement of Foreign Judgments

Uniform Enforcement of Foreign Judgments Act (Revised Final Draft) Report August 2003

1. Overview of Activities

[1] The Working Group was asked by the ULCC at its August 2001 meeting to revise the Draft Uniform Enforcement of Foreign Judgments Act (UEFJA) based on the discussions that had taken place and the resolutions of the Civil Section in that regard. In particular, the Conference confirmed that the Act was to apply to monetary and non-monetary judgments. It also resolved that the Act should contain provisions to provide safeguards with respect to the execution of problematic non-monetary judgments, since safeguards for problematic monetary judgments were already included, and that provisional orders should be excluded from the scope of the Act. The Conference decided that option C should be retained for the conversion date under the then article 11. Finally, it was recognized that the text needed to be reviewed by legislative drafters.

[2] The 2002-2003 Working Group was composed of Joost Blom, Russell Getz, Peter Lown, H. Scott Fairley, Greg Steele, Darcy McGovern, Frédérique Sabourin and Tim Rattenbury with Kathryn Sabo as co-ordinator. As the drafters assigned to the project, Linda Tarras and Hélène Rodrigue were of great assistance. The Working Group acknowledges their key contribution with sincere thanks.

[3] From January to June 2003, the Working Group held a series of conference calls with a view to implementing the decisions of the Conference from 2001, reviewing the text as revised by the drafters and discussing issues raised or highlighted by the redrafted text.

2. Results of this year’s activities

[4] With the assistance of the legislative drafters, the Working Group has implemented the decisions of the Conference of 2001. Provisional and protective measures have been removed from the scope of the Act. Safeguards with respect to the enforcement of problematic non-monetary judgments have been added. The currency conversion option chosen by the Conference in 2001 has been retained.

[5] The policy choices with respect to enforcement of foreign judgments already approved by the Conference continue to be reflected in the revised final draft. They are as follows:

  • A specific uniform act should apply to the enforcement of foreign judgments rendered in countries with which Canada has not concluded a treaty or convention on recognition and enforcement of judgments.
  • The proposed uniform act indicates what kind of judgments it covers as well as to which judgments it will not apply.
  • The proposed uniform act applies to money judgments as well as to those ordering something to be done or not to be done.
  • The proposed uniform act rejects the “full faith and credit” policy applicable to Canadian judgments under the Uniform Enforcement of Canadian Judgments (UECJA).
  • The proposed uniform act identifies the conditions for the recognition and enforcement of foreign judgments in Canada. These conditions are largely based on well-accepted and long-established defences or exceptions to the recognition and enforcement of foreign judgments in Canada.
  • Following Morguard, the proposed uniform act adopts as a condition for recognition and enforcement of a foreign judgment that the jurisdiction of the foreign court which rendered the judgment was based on a real and substantial connection between the country of origin and the action against the defendant.

[6] The modifications that appear in this revised final draft are mainly editorial. There are some language changes and some reordering of provisions. A table setting out the article numbers of the 2003 version and the corresponding 2001 article numbers is attached, followed by the text and commentary of the revised final draft.

[7] There are some substantive differences in this revised final draft as compared to the 2001 version, but these are generally additions dictated by the need for clarification or for balance as opposed to changes in orientation. For example, in Part 2 – Enforcement – General, the Working Group has broadened the possibility in section 6 for a court to reduce the damages awarded in a foreign judgment. The Working Group has added a new section 11 to ensure that the grounds for opposing the enforcement of a foreign judgment can be made applicable, as appropriate, where enforcement as such is not sought but where recognition of the judgment may be justified. The Working Group has made refinements to Part 3 – Enforcement Procedures while retaining a minimalist approach. Some detail is provided, especially in sections 12 and 14, to ensure that clear registration and enforcement procedures are set out, but the provisions aim to avoid interfering with general civil enforcement regimes. Section 16 appears now in square brackets to reflect the Working Group’s view that this section is no longer necessary.

3.Overview of the revised final draft uniform act: Uniform Enforcement of Foreign Judgments Act

[8] The proposed Uniform Enforcement of Foreign Judgments Act is divided into four parts.

[9] Part 1 deals with definitions (s. 2) and scope of application (s. 3).

[10] Part 2 refers to enforcement generally. It contains eight provisions on various matters: reasons for refusing to enforce (s. 4); the time within which enforcement is to be sought (s. 5); the discretion of the enforcing court to reduce foreign awards of non-compensatory and excessive damages (s. 6); the discretion of the enforcing court to modify a foreign judgment or provide for procedures to be used (s. 7); the jurisdiction of the foreign court based on voluntary submission, territorial competence or a real and substantial connection (s. 8); examples of real and substantial connections (s. 9); and an “escape clause” (s. 10).

[11] Part 3 deals with the enforcement procedure.

[12] Part 4 covers the regulations.

4.Particular issues to be considered by the Conference

[13] It should be noted that in the Act a distinction is drawn between recognition and enforcement for certain purposes as provided in section 11.

[14] The Conference is asked to consider whether section 16 can be deleted. The aim of this section was to preserve the existing procedure of bringing an action on the foreign judgment but to make such an action subject to the substantive requirements set out in the Act to ensure the greatest degree of uniformity possible. After discussion, the Working Group has concluded that given the provisions of the Act, there is no need to preserve the action on the foreign judgment and recommends that section 16 be deleted.

5. Recommendation

[15] Subject to the Conference’s decisions with respect to the above-noted issues, it is recommended that the Conference approve and adopt this revised final draft Uniform Enforcement of Foreign Judgments Act and commentaries.

Appendix 1

Concordance Table

2003 Sections

2001 Sections

 

 

1- new

-

PART 1 - INTERPRETATION AND APPLICATION

 

2

1, 9 (1)

3

2

PART 2 - ENFORCEMENT — GENERAL

 

4

3 (note - 3A deleted)

5

4

6

5

7 – new (non-monetary judgments)

 

8

6

9

7 (note - 7A deleted)

10

8

11 – new (non-estoppel)

 

PART 3 - ENFORCEMENT PROCEDURES

 

12 (1) - new

 

(2)

9 (3)

(3) new in part

10 (1) (c)

(4) (a)

10 (1) (a)

(b) new in part

10 (2)

(c) new in part

10 (1) (d)

(d)

10 (1) (b)

(5)

10 (3)

13

11

14 (1)

9 (2)

(2)

9 (4), (5)

(3)

9 (6)

15

12

[16]

9 (7)

PART 4 - REGULATIONS

 

17

13

 

2002-2003 Working Group on Enforcement of Foreign Judgments

Uniform Enforcement of Foreign Judgments Act

REVISED FINAL DRAFT – August 2003

Short title

1. This Act may be cited as the Uniform Enforcement of Foreign Judgments Act.

Next Annual Meeting

2018 Conference (Centennial)

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August 12 - 16, 2018