Enforcement of Foreign Judgments 2003

PART 3 - ENFORCEMENT PROCEDURES

Right to register

12.(1) A foreign judgment that is enforceable under this Act may be registered under this Part.

Multiple claims

(2) If a foreign judgment contains parts that may be enforced separately, the judgment creditor may register the judgment in respect of those parts at different times.

Notice to judgment debtor

(3) The judgment creditor must give to the judgment debtor a notice of intention to register a foreign judgment in respect of one or more of its parts

(a) indicating which of the grounds set out in section 8 are being relied on to claim that the court in the State of origin had jurisdiction to make the foreign judgment; and

(b) identifying the parts.

Registration procedure

(4) A judgment creditor may register a foreign judgment by filing with the enforcing court

(a) a copy of the foreign judgment certified as true by a proper officer of the court that made the order;

(b) a copy of each notice referred to in subsection (3);

(c) an application to modify the foreign judgment, if the judgment creditor is of the opinion that the judgment must be amended by the enforcing court to render it enforceable; and

(d) a certified translation of the foreign judgment into either English or French, if it was not given in one of those languages.

Costs and expenses

(5) The judgment creditor may, if the regulations so provide, recover from the judgment debtor the costs and expenses related to the registration of the foreign judgment.

Comments: Part III of the Act reflects a compromise between two approaches to defining the procedure for enforcement of foreign judgments. One approach would leave the procedure entirely to be defined by the enacting jurisdiction, whether by regulation or by statutory provision. This would allow too much variation from one province or territory to another. The other would define the procedure exhaustively in the model Act. This would create difficulties in terms of harmony with long-established procedures in each jurisdiction. The compromise proposed here is to set certain parameters for the procedure but to recognize the need to accommodate existing differences to a certain extent. Additionally, the Act allows the general civil enforcement rules to operate as much as possible, recognizing that work to achieve uniformity there is underway.

Section 12 sets out the procedural steps for registration. The Act recognizes that for a variety of reasons a judgment creditor may wish to seek enforcement of only part of a judgment, a matter covered in section 14(2). Subsection (2) of section 12 ensures that the judgment creditor can also register with respect to part of a judgment and can do so on difference occasions for the different parts, subject to the notice provisions. Subsection (3) requires the judgment creditor to notify the judgment debtor of the intention to register, to inform the latter of the jurisdictional grounds under section 8 that are relied upon and to identify the parts of the judgment with respect to which registration is sought. Subsection (4) sets out the documents that must be provided to the court: a certified copy of the foreign judgment, translated into English or French if necessary; a copy of the notice to the judgment debtor; and, where the judgment creditor considers that the foreign judgment requires modification in order to be enforceable as if it were an order contained in a local judgment, an application that would set out the modifications proposed. Finally, subsection (5) adds to these informational requirements a substantive provision that the enacting jurisdiction may (or may choose not to) provide, in the regulations under the Act, for the recovery by the judgment creditor from the judgment debtor of costs in relation to the registration procedure.

Conversion to Canadian currency

13.(1)Where a foreign judgment orders the payment of a sum of money expressed in a currency other than Canadian currency, when the judgment is registered it must include a statement that the money payable under the judgment will be the amount of Canadian currency that is necessary to purchase the equivalent amount of the other currency at a chartered bank located in [the enacting province or territory] at the close of business on the conversion date.

Conversion date

(2)For the purposes of subsection (1), the conversion date is the last day, before the day on which the judgment debtor makes a payment to the judgment creditor under the registered foreign judgment, on which the bank quotes a Canadian dollar equivalent to the other currency.

Comments: Section 13 adopts the policy of the Uniform Foreign Money Claims Act respecting the date of conversion of foreign currency to Canadian currency. This is consistent with the common law rule (the “date of payment” rule) adopted by the House of Lords in the Miliangos case. The policy is that the conversion to Canadian dollars shall take place at the rates prevailing at the time of payment. This is also the currency conversion date in Section 31 of the British Columbia Court Order Enforcement Act respecting the reciprocal enforcement of foreign judgements. It is the fairest conversion date based on the principle that the creditor is most accurately compensated by receiving, possibly years after the foreign judgment, the amount of foreign currency stipulated by the judgment or the Canadian dollars that are needed, as of the time of payment, to purchase that amount of foreign currency.

Enforcement

14.(1) On registration, a foreign judgment is enforceable as if it were a judgment of the enforcing court.

Jurisdiction of enforcing court

(2) An enforcing court has the same jurisdiction and control over a registered foreign judgment as it has over its own judgments and may order enforcement in respect of one or more of its parts.

Enforcement by sale of property

(3) A registered foreign judgment may not be enforced by the sale or other disposition of any property of the judgment debtor before the expiry of 30 days after the judgment debtor has received notice of the proceedings to register the foreign judgment, or any longer period that the enforcing court may allow.

Comments: Section 14 is for greater certainty, to remove any doubt that, on registration, a foreign judgment is the functional and juridical equivalent of a judgment emanating at first instance from the enforcing court. This status applies to the foreign judgment as a whole or in part depending on and as per the enforcement procedures that have been completed pursuant to section 12 of the Act. Subsection 14(3) provides a grace period before a judgment creditor can satisfy all or part of a registered foreign judgment through the enforced sale of a judgment debtor’s property, but this is intended to provide a judgment debtor only with reasonable notice of the likely consequences of registering a foreign judgment and in no way qualifies the legal status, force or ultimate effect of the registration itself.

Interest

15.(1) The interest payable on an amount awarded under a registered foreign judgment is

(a) the interest accruing on that amount under the law of the State of origin, starting on the day on which the foreign judgment became enforceable in that State and ending on the day immediately before the conversion date; and

(b )the interest accruing on that amount under the law of [the enacting province or territory], starting on the conversion date and ending on the day on which the judgment debtor makes a payment to the judgment creditor under the registered foreign judgment.

Variation of interest

(2) The enforcing court, if it considers it necessary to do so to ensure that the judgment creditor will be most truly and exactly compensated, may order that the interest be calculated in a different manner.

Comments: The provision respecting interest is based on the principle that the rule for post-foreign judgment interest should parallel the rule respecting currency conversion in Section 13. That is, the foreign judgment should bear interest at the relevant foreign interest rate until the date as of which the obligation is converted from the foreign currency into Canadian currency, and after that date should bear interest at the same rate as a local judgment. Thus, if the original jurisdiction has a rapidly devaluing currency, it would usually have a correspondingly high interest rate, and the foreign judgment ought to bear interest at that rate as long as the obligation is denominated in that currency, i.e., up to the date of conversion. After the date of conversion into Canadian currency, the relevant local interest rate is appropriate.

The alternative solution provided for in Sections 2 and 3 of the Uniform Foreign Money Claims Act, that is, of allowing the matter of interest to be dealt with by regulation would be less satisfactory from the perspective of a uniform approach.

Subsection (2) allows a court to vary the interest rate if it considers that the application of the stipulated rule would overcompensate or undercompensate the judgment creditor.

Other enforcement procedures

[16.Nothing in this Act affects the right of a person to enforce a foreign judgment by bringing an action on the judgment, as long as the judgment meets the requirements for enforceability under this Act.]

Comments: Section 16 preserves the procedure of bringing an ordinary action on the foreign judgment, but stipulates that the Act governs the substantive requirements that the foreign judgment must satisfy to support the action. While section 16 gives a judgment creditor the option of utilizing a different procedure than that available under the Act, it cannot be used to enforce a judgment which would not otherwise be enforceable in accordance with the substantive requirements of the Act.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018