Foreign Judgments - Common Law 1996



D. Mechanisms for Enforcement

[83]   The meeting should consider two questions: (1) whether a uniform statute should deal with mechanisms of enbforcement, and (2), if so, what mechanism it should adopt. We note here that if the issue is recognition, as distinct from enforcement, the questions of mechanism probably does not arise. Recognition is simply treating a cause of action or an issue in the foreign judgment as res judicata. If a foreign judgment meets the criteria for recognition discussed above, there seems to be no value in requiring some form of registration or other procedure as a further condition of giving the judgment the standing of res judicata. Any dispute between the parties as to whether the foreign judgment is recognized in Canada is bound to come before a court in any event, either in the course of a Canadian proceeding that attempts to relitigate the same issue, or in an application by one of the parties for a declaration that the judgment is or is not effective in Canada.

1. Should a uniform statute deal with mechanisms of enforcement?


[84]  As noted above, it is not necessary for a uniform statute to deal with this question. The equivalent American statute does not. The question of enforcement mechanisms can be left to the individual provinces and territories, which might then choose to deal with it in different ways. To the extent they did so, that would result in a lack of uniformity, but it is far from clear that uniformity on this issue is crucial. Certainly it is far less important than the question of which judgments should be enforceable (dealt with in B. Conditions for Enforcement). In our view an ideal model act would deal with this issue. However, if there are differences in opinion as to how this matter should be dealt with it those might result in a reluctance of some provinces to adopt any part of the uniform act. That would produce a lack of uniformity which would be worse than the failure of the act to deal with the question of mechanisms of enforcement. Accordingly we suggest that a uniform act should contain provisions dealing with mechanisms of enforcement if substantial agreement can be reached on what those mechanisms should be; otherwise the matter need not be deal with in a uniform act.

2. The appropriate enforcement mechanism.


[85]  Assuming a foreign judgment meets the conditions for recognition the question arises of how enforcement is to be achieved. The traditional common law method was to bring an action on the foreign judgment. The foreign judgment was treated as a debt upon which the successful plaintiff must bring suit in the court in which enforcement was sought. This did not mean that all of the defences to the original cause of action were available; rather the available defences were the various conditions for enforcement.

[86]  There is an alternative method to consider. The enforcement mechanism chosen by the ULC in the Reciprocal Enforcement of Judgments Act (REJA) and the Uniform Enforcement of Canadian Judgments Act (UECJA) was registration. Rather than force the successful plaintiff to bring an action on the original judgment, the plaintiff might simply be permitted to register the judgment. This replaced a judicial process with a largely administrative one, with attendant savings in time and money.

[87]  There are a variety of considerations which bear on the question of whether a uniform foreign judgments enforcement act should duplicate the REJA and UECJA initiatives and supplant the common-law suit procedure by a simpler registration procedure. In favour of the move to registration is that, assuming (as we must in this section) that the foreign judgment meets the conditions for recognition, the judgment creditor should have the benefit of the cheapest, quickest procedures to secure enforcement. Enforcing a foreign judgment by bringing suit on it may be unnecessarily cumbersome.

[88]  On the other hand, permitting the foreign judgment creditor merely to register

the judgment has the effect of putting on the defendant the onus of taking positive steps to raise the issue of whether the conditions of enforcement have been met. This may be appropriate under the REJA scheme, where a province has made a positive decision to reciprocate with the foreign jurisdiction in question (presumably in return for some quid pro quo which would provide comparable or identical advantages to judgment creditors in actions before its own courts). It may also be appropriate in the UECJA scheme, where the "foreign" jurisdiction is by definition another Canadian province. It is far from clear that comparable advantages should be extended to plaintiffs in foreign countries, at least where no reciprocal arrangment is in place. In addition we note that declining to extend the cheaper, more advantageous registration scheme to non-reciprocating foreign jurisdictions would preserve an appropriate carrot for future bilateral negotiations. That is, Canadian negotiators would be able to offer the concession of a registration (as opposed to law suit) enforcement mechanism, in return for comparable treatment of Canadian judgments in the foreign jurisdiction.

[89]  In conclusion we note that it is far from obvious that the registration scheme we have adopted in the Reciprocal Enforcement of Judgments Act and the Uniform Enforcement of Canadian Judgments Act should be replicated in a uniform statute for enforcement of foreign judgments. We suggest that, unless good arguments to the contrary are forthcoming, any model statute for enforcement of foreign judgments should continue to require than enforcement by means of bringing suit on the foreign judgment.

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