Interprovincial Enforcement of Non-Money Judgements 1996

1996 Ottawa, ON
Civil Section Documents - The Interprovincial Enforcement of Non-Money Judgements


A. Introduction

Recent judgments of the Supreme Court of Canada1 have given judicial weight to the view that it is not appropriate to regard different provinces within a federal arrangement as truly distinct international entities.2 There are at least two related foundations to this argument. First, to maintain obstacles to enforcement of judgments and the flow of capital and labour across provincial boundaries is not in the spirit of federalism. Second, the common law provinces share a common legal heritage, and to look on a judgment of another superior court with the same distrustful eye that one looks at a judgment of a truly foreign court denies this common heritage.

These developments have occurred in the context of the enforcement of money judgments between Canadian provinces and they have stimulated a number of responses. Perhaps the most significant of these was the development, by the Uniform Law Conference of Canada, of the Uniform Enforcement of Canadian Judgments Act [UECJA] which was settled in 1991. Work on it actually pre-dated the decision in Morguard3 but that decision highlighted the necessity of developing rational uniform legislation in this area. Briefly stated, UECJA provides a mechanism under which a court in one province may register a judgment for a defined sum of money rendered by a court of another province, allowing the court in the registering province to treat the judgment as its own. This relieves the judgment creditor of many of the legal hurdles that would be confronted had the judgment been enforced by a fresh law suit on it.

The UECJA was drafted to apply solely to final judgments that required the payment of money. Section 2 (1) of the Act says that "a Canadian judgment for the payment of money may be registered under this Act for the purpose of enforcing payment of the money...." Subsection (2) allows the money provisions of a judgment to be separated from non-money provisions in order to be registered. Clearly excluded from these provisions is the application of a registration and enforcement scheme to judgments that do not require a person to pay money, but require the person to do or not to do some act. This reading is confirmed by the Official Comment to s. 2: "Only judgments for the payment of money may be registered."4

The arguments and policies which support the creation of machinery to facilitate the enforcement of money judgments between Canadian provinces also have force in the context of non-money judgments. This report is concerned with the feasibility of developing a Uniform Act which achieves, in the realm of non-money judgments, what UECJA achieves in relation to money judgments.

B. Is a scheme for the interprovincial enforcement of non-money judgments appropriate?

The law has experience over the centuries of enforcing judgments for money that emanate from the courts of other states. The creation of modern legislation for the interprovincial enforcement of money judgments, therefore, was not perceived as some new and radical measure. The development of the UECJA was simply the most recent step in an evolutionary process which allows us to do better and more efficiently things we have always been able to do.

A scheme for the interprovincial enforcement of non-money judgments would have roots and antecedents of its own but they are much less obvious. Such a scheme is much more likely to be perceived as a significant break with the past and might, perhaps, meet resistance for that reason. In making the case for change, if it can be demonstrated that a scheme for the interprovincial enforcement of non-money judgments has doctrinal roots of its own, and is consistent with other contemporary legal developments, the possibility of its acceptance should be greatly enhanced. Some factors that support the creation of such a scheme are set out below.

1. The Morguard Decision

While Morguard was concerned with a judgment for money, the principles stated in it are broad enough to embrace non-money judgments. LaForest J. observed: 5

As I see it, the courts in one province should give full faith and credit, to use the language of the United States Constitution, to the judgments given by a court in another province or territory, so long as that court has properly, or appropriately, exercised jurisdiction in the action. ... It seems both archaic and unfair that a person should be able to avoid legal obligations arising in one province simply by moving to another province. Why should a plaintiff be compelled to begin an action in the province where the defendant now resides whatever the inconvenience and costs this may bring and whatever degree of connection the relevant transaction may have with another province? And why should the availability of local enforcement be the decisive element in the plaintiff's choice of forum?

These comments apply with equal force to a proceeding where non-money relief, such as an injunction, is claimed.

2. An equitable jurisdiction to enforce non-money judgments may exist

This ancient practice of suing on a foreign judgment as a debt arose before the jurisdictions of the common law courts and the Courts of Chancery were combined by the Judicature Acts. The rules limiting the common law courts to granting money remedies caused them to only be able to treat foreign judgments as debts, and this limitation appears to have persisted to this day. However, there may be equitable jurisdiction to enforce foreign non-money orders6, though it does not have appeared to have been exercised since the implementation of the Judicature Acts.

In Morgan's Case7 the English Chancery Court enforced a decree issued in a Welsh court (before England and Wales became one juridical district) requiring the payment of a legacy: "[T]he bill having stated the will, and all the proceedings in Wales, &c., for the recovery of the legacy, an original independent decree might be had in this court for the legacy...." 8

In Houlditch v. Marquis of Donegal 9, the Marquis' creditors obtained orders against him in the English Chancery Court, enjoining him from collecting rent from his Irish lands and appointing a receiver. The Irish Lord Chancellor said that he could not enforce the English orders in Ireland. His decision was overturned by the House of Lords, who said that the plaintiffs had an action on the order in Chancery Court just as a judgment-creditor has an action in debt.

It is questionable how these authorities stand today. Neither are mentioned in Halsbury's in this context10. The equitable principle they supposedly stand for was missed by the Lord Chancellor in Re Dundee and Suburban Ry. Co.11 where the court said there was no way to enroll in England the injunctive portions of a Scottish judgment. Whyte holds that the argument that equity may enforce foreign non-money judgments is still good, at least in Australia.12

These cases do illustrate, at the very least, that the enforcement of a non-money judgment from another place is not a concept which the common law regards as an anathema.

3. Legal doctrines in relation to res judicata and issue estoppel favour the enforcement of non-money judgments

Res judicata, loosely translated, means simply, "a thing judicially decided." The doctrine associated with the term is that, other than on appeal, a person may not bring a matter before the court that has already been the subject of a decision. The term and its maxim appeared in Roman Law13 and seem to have always been a part of the common law tradition.

There are at least two policy justifications for this prohibition. The first concerns an issue of public policy. It is in the community's general interest to bring some finality to litigation14, and it is a pillar of the legitimacy of the dispute-resolving function of the court that its judgements and orders should be considered final.

The second justification is one of private justice15. The individual should enjoy a right to be protected from harassment from repeated attacks on the same matter in the very public and very expensive forum of court.

The doctrine has been applied procedurally as "estoppel per rem judicatum", or estoppel "on the record". This means that a party will be estopped, or prevented, from raising as an issue a matter that has already been decided upon by a court of competent jurisdiction.

This estoppel may be pleaded in two forms: cause of action estoppel and issue estoppel. Cause of action estoppel prevents a party from relitigating a claim that formed the basis of previous litigation. It often appears where a plaintiff has not obtained judgment in its favour in a previous action, and attempts to re-try the matter in a new forum or with a different spin on the evidence it presented before. In such a situation, the court will strike out the plaintiff's new claims as being res judicata. Such was the case in Ordish v. City of London16, where the court bristled at the plaintiff's attempt to re-try a matter in an action for damages which had previously been found against him in judicial review proceedings.

Cause of action estoppel is fairly easy to understand and justify, especially if one thinks of its companion from criminal law, the rule against double jeopardy, enshrined in the Charter as the right to not have to stand trial for the same criminal charges more than once.

Issue estoppel is more complicated in practice, if not in theory. A person is estopped from arguing an issue that has been decided upon in previous litigation. In order for the estoppel to operate, the person claiming the estoppel must show:17

1) that the same question has been decided;
2) that the judicial decision which is said to create the estoppel is final;
3) that the parties to the judicial decision or persons cliaming through them were the same persons as the parties to the proceedings in which the estoppel is raised or their privies; and
4) that the question at issue was fundamental to the judicial decision arrived at in the earlier proceedings.

An attempt to relitigate an issue is often described as an abuse of process. An application to have a claim struck is often on the basis that the claim is res judicata or an abuse of process, or both.

This rule may operate to prevent either a plaintiff or a defendant from making a claim or defence contrary to a previous judicial decision18.

The way in which these principles may become relevant is this. A has sued B in Alberta and obtained a permanent injunction restraining B from specified conduct. B moves to Vancouver and A wishes the injunction to continue. A commences a fresh action in Vancouver based on the same facts that were before the court in Alberta. The principles of res judicata and issue estoppel should require that B be estopped from relying on any defence that might have been raised in the Alberta action.

That, at least, is the theory, but concrete examples of its application are difficult to find. Questions of res judicata and issue estoppel arise almost exclusively where a plaintiff, having been unsuccessful in an action brought in terrirory A attempts to bring substantially the same action in terrirory B. Principles of res judicata will normally prevent the plaintiff from his attempt to re-litigate the claim.

4. Enforcement schemes currently exist for some kinds of non-money orders

Certain kinds of non-money orders have been expressly made enforceable in provinces by legislation. The clearest example of this is the adoption in many common law provinces of machinery to enforce extra-provincial custody and access orders.19 Another example is legislation that gives effect to foreign probates.20

5. Out-of-province non-money judgments are readily recognized where active enforcement is not required

The difference between recognition and enforcement should be noted. The terms are often interchanged, but, in actuality, a judgment needs to be recognised before it may be enforced. Recognition is the adoption of the foreign decision as res judicata and being as acceptable to the recognising court as if it were a decision of its own. Enforcement is the application of the court's powers to give effect to the decision and may follow recognition, for example, by enforcement proceedings or contempt proceedings. Of course, there are occasions when all a party wants is for the court to recognize the foreign decision as valid, and may only seek to enforce the decision, if at all, in the future. Some decisions, such as declarations of status (marriage, divorce, annulment, adoption, filiation, etc.) may be recognised, but they are not enforceable per se. Also, when a foreign decision is argued to raise an estoppel per rem judicatum, the party claiming the estoppel seeks only the decision's recognition, not its enforcement.

Foreign orders that require recognition only (as opposed to recognition and enforcement) are routinely given effect. This is particularly true where the order concerns matters of personal status such as divorce.

6. Quebec Law Now Embraces the Enforcement of Non-money Judgments from Outside the Province


Quebec's new Civil Code deals expressly with the recognition and enforcement of foreign decisions.21 Book 10 of the Civil Code deals with private international law and Title 4, the recognition and enforcement of foreign decisions and jurisdiction of foreign authorities. The core provision states:

Chapter I -- Recognition and Enforcement of Foreign Decisions

3155. A Quebec authority recognizes and, where applicable, declares enforceable any decision rendered outside Quebec except in the following cases:

(1) [the foreign decision was made without jurisdiction -- i.e. where foreign authority did not have jurisdiction according to Chapter II or where Quebec authority would not have jurisdiction according to Title Three];

(2) [the decision is not final or enforceable where the decision was rendered];

(3) the decision was rendered in contravention of the fundamental principles of procedure;

(4) [a dispute between the same parties has been decided or is pending in Quebec]

(5) the outcome of a foreign decision is manifestly inconsistent with public order as understood in public relations

(6) the decision enforces obligations arising from the taxation laws of a foreign country.

This article draws no distinction between judgments for money and other judgments . it refers to "any decision rendered outside Quebec.."

7. The Enforcement of Non-money Judgments are Consistent with Developments in Private International Law

There are two international conventions on jurisdiction and the enforcement of judgments in civil and commercial matters. The first, the Brussels Convention, was designed to provide the framework for the enforcement of judgments between the members of the European Economic Community.22 The second, the Hague Convention,23 which was intended to be adopted more widely. The two conventions are quite similar.

The preamble to the Hague Convention recites that the signatory states:
  • desiring to establish common provisions on mutual recognition and enforcement of judicial decisions rendered in their respective countries, have resolved to conclude a convention...
The core provision, Article 2, states:

This convention shall apply to all decisions given by the courts of a contracting state, irrespective of the name given by that state to the proceeding which gave rise to the decision or of the name given to the decision itself such as judgment, order or writ of execution. [emphasis added]24

The generality of this statement is qualified by a list of particular kinds of decisions to which the convention does not apply.25

It is also relevant to note that a Canada/France Convention on the enforcement of judgments is currently under negotiation. It is expected that this convention will provide for the enforcement of some non-money judgments.

One should, perhaps, not attach too much weight to these developments. Nonetheless, they do provide evidence that the international community does not regard the enforcement of non-money judgments between states as forbidden territory.

8. Other Federations have Adopted Schemes for the Enforcement of Non-Money Judgments

Other federation have adopted schemes for the enforcement of judgments between their internal units. A fuller description is set out below.

9. Summary

There is a significant number of threads of jurisprudence and legal policy which suggest that a scheme for the interprovincial enforcement of non-money judgments should be developed.

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