Foreign Judgments - Common Law 1996



III. Effect of a Uniform Act on Existing Legislation

[96]   Mention should be made of the existing provincial legislation based on the 1933 Uniform Foreign Judgments Act of the Conference of Commissioners on Uniformity of Legislation in Canada. That model statute roughly codified the common law as of 1933. Saskatchewan adopted it the following year, and New Brunswick in 1950. Because the judge-made rules respecting foreign judgments have changed considerably since 1933, and in particular since 1990, those statutes now operate to provide those provinces with rules which are far different from those obtaining in the other seven common law provinces and the territories. They are the most significant source of lack of uniformity in the existing system, and we note that the ULCC no longer recommends the Foreign Judgments Act for adoption. It goes without saying that the promulgation of any new uniform uniform act on this subject would entail the repeal of the Foreign Judgments Acts of Saskatchewan and New Brunswick. In addition it should be noted that repeal of those statutes need not by delayed until a new uniform act is prepared and promulgated. They appear to be performing a function they were never intended to fulfill; viz. setting barriers to enforcement of foreign judgments that are higher than those currently deemed appropriate by the common law. Considerable gain in uniformity could be achieved by their repeal at the earliest opportunity.

[97]  Ideally a new uniform act on foreign judgments would also replace the Reciprocal Enforcement of Judgments Acts in all the common law provinces in which the list of reciprocating states includes non-Canadian jurisdictions. However it must be remembered that the REJA contains enforcement machinery that may be of importance to the non-Canadian jurisdiction, viz. the system whereby judgments may be registered rather than enforced by bringing an action. If a new uniform statute on foreign judgments permitted registration (see section II, D. 2) this would not be a problem and the REJA could be repealed. However if it did not then it might not be advisable simply to repeal the REJA. A possible solution would be that where a foreign judgment (1) is acceptable for enforcment accordin to the tests set out in a new uniform foreign judgments acts and (2) is from a jurisdiction formerly listed as a reciprocating jurisdiction for the purposes of a given province's REJA, then it could be registered in that province under the applicable UECJA (assuming, of course, that the province in question had adopted UECJA).

[98]  To the extent that Canada has entered into bilateral treaties for the recognition of judgments, as currently with the U.K. and France, (though the latter has not yet been implemented) there would be an issue of co-ordination. If the uniform act was more restrictive, in any respect, than the existing treaty rules, it would have to be made subject to the treaty. If the uniform act was more generous on some points than the existing treaty rules, it could still be extended to treaty countries without, we assume, causing a problem in terms of violating Canada's treaty obligations. The U.K. treaty certainly contemplates that each country may be more generous in recognizing judgments than the treaty requires. (Extending the uniform act to treaty countries might, however, mean the loss of an opportunity to negotiate a quid pro quo with our treaty partners in respect of this liberalization.) As far as future bilateral treaties are concerned, we have already mentioned the possibility of a "two-tiered" structure, with the more favourable set of recognition and enforcement rules extending to those countries with which Canada has negotiated appropriate treatment for Canadian judgments.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018