Enforcement of Foreign Judgments 2003

PART 1 - INTERPRETATION AND APPLICATION

interpretation

Definitions

2.The definitions in this section apply in this Act.

“civil proceeding”

«instance civile»

“civil proceeding” means a proceeding to determine a dispute between two or more persons or entities — one or more of whom may be a government body — the object of which is an order or judgment that

(a) in the case of a violation of a right, requires a party to comply with a duty or pay damages; or

(b) in any other case, determines the personal status or capacity of one or more of the parties.

“enforcing court”

«tribunal d’exécution»

“enforcing court” means [the superior court of unlimited trial jurisdiction in the enacting province or territory].

“foreign judgment”

«jugement étranger»

“foreign judgment” means a final decision made in a civil proceeding by a court of a foreign State, rendered by means of a judgment, order, decree or similar instrument in accordance with the laws of that State. It includes a final decision made by an adjudicative body other than a court if the enforcing court in [the enacting province or territory] is satisfied that the adjudicative body is the body that determines disputes of the kind in question in that State.

“judgment creditor”

«créancier judiciaire»

“judgment creditor” means the person entitled to enforce a foreign judgment.

“judgment debtor”

«débiteur judiciaire»

“judgment debtor” means the person liable under a foreign judgment.

“registration”

«enregistrement»

“registration” means the procedure prescribed by this Act or the regulations for the registration and enforcement of a foreign judgment.

“State of origin”

«État d’origine»

“State of origin” means the State or subdivision of a State where a foreign judgment was made.

Comments: As is customary the proposed uniform act on enforcement of foreign judgments includes a section on definitions. Most of them are self-explanatory.

In light of ULCC-Civil Section discussions, the scope of the future UEFJA is not limited to only foreign judgments that are final and monetary in nature (see the definition of “civil proceeding”). It was also decided that the Act would not include foreign provisional orders (see the definition of “foreign judgment” which limits the application of the Act to final decisions). Finally, the Act applies to foreign final judgments, even where such a judgment was not rendered by a court but rather by another adjudicative body, where the enforcing court in the province or territory adopting the Act is satisfied that the adjudicative body that rendered the decision was empowered to do so. Thus a decision rendered by an administrative tribunal could be covered by the Act if it arose from a civil proceeding and did not concern administrative law.

In terms of the procedure set out in the Act, the expression “registration” is used, but the definition here is intended to include any procedure by which a foreign judgment is made enforceable in the same manner as a local judgment. This would include, notably, the Quebec procedure under which an application is made to the court to render the judgment executory in Quebec, and the court’s order is the means by which this is achieved. It is immaterial for the purposes of the definition whether the “registration” is ex parte, with notice and an opportunity to oppose enforcement being given to the debtor afterwards, or the “registration” is made only after the debtor is given notice and an opportunity to oppose.

application

Exceptions

3.This Act does not apply to foreign judgments

(a) for the recovery of taxes;

(b) arising out of bankruptcy and insolvency proceedings as defined in Part XIII of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended;

(c) for maintenance or support;

(d) that recognize the judgment of another foreign State;

(e) for the recovery of monetary fines or penalties; or

(f) rendered in proceedings commenced before the coming into force of this Act.

Comments: Section 3 determines the scope of application of the Act by specifying the foreign judgments to which the Act does not apply. This list accords with the traditional list of exceptions to enforcement of foreign judgments in Canada (taxes, penalties), and also takes into account those judgments for which separate enforcement rules exist (insolvency, maintenance). Thus enforcement of foreign judgments on these matters will not be possible under the proposed UEFJA. However, enforcement of judgments on matters not mentioned in the list could be considered in compliance with the conditions set out in the Act.

The proposed UEFJA applies only to original foreign judgments and not to judgments recognizing a foreign judgment. Moreover, the proposed Act has no retroactive effect: only judgments obtained in proceedings commenced after the entry into force of the Act would be executable under its provisions.

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