Foreign Judgments - Common Law 1996



Appendix: Draft Uniform Foreign Judgments Act Definitions

1.   In this Act,

"country" means a state or a subdivision of a state;

"court", in relation to a foreign judgment, inclues a tribunal of a country outside Canada that makes an order that is enforceable as a judgment of the superior court of unlimited trial jurisdiction of that country [see para. 29];

"foreign judgment" means

(a)  a final judgment or order made in a civil proceeding by a court of a country outside Canada [see para. 17],

(b)  an interlocutory order made in a civil proceeding by a court of a country outside Canada [see paras. 27-28], and

(c)  an order by a court of a country outside Canada for the payment of maintenance or support for a spouse or child, whether or not that order is subject to variation by the original court [see paras. 21-25], but does not include

(d)   an order by a court as a penalty or fine for committing an offence, or any other order arising out of a penal proceeding [see para. 18],

(e)  an order by a court for the payment of money as taxes, or any other order arising out of a proceeding relating to taxes [see para. 19];

(f) a divorce, custody order, or declaration by a court of a person's status by reason of birth or marriage [see para. 17];

(g) a judgment in rem [see para. 17], or

(h) a judgment in a bankruptcy or insolvency proceeding [see para. 17];

"judgment creditor" means a person entitled to enforce a foreign judgment in the original country;

"judgment debtor" means a person liable under a foreign judgment;

"original", in relation to a court or country, means the court that gave a foreign judgment or the country under whose law that court was established; and

"parties", in relation to a foreign judgment, means the parties that according to the law of the original country are bound by the judgment.

Consent to the jurisdiction of the original court

2.    For the purposes of this Act, a judgment debtor consented to the jurisdiction of the original court if the judgment debtor


(a)  commenced the proceeding that led to the foreign judgment,

(b)  took a step to defend the proceeding that led to the foreign judgment, or

(c)  agreed with the judgment creditor to be bound by the outcome of the proceeding that led to the foreign judgment, but a judgment debtor did not consent to the jurisdiction of the original court solely by arguing before the original court that the court did not have jurisdiction or should decline jurisdiction in the proceeding [see paras. 35-36].

When a foreign judgment must be recognized

3.  A foreign judgment is recognized in [enacting province or territory] if

(a)  the judgment is from a country included in Schedule A and is a judgment as described in that Schedule [see paras. 39-40]; or

(b)  the judgment is not from a country included in Schedule A and any of the following criteria is satisfied:
  • (i)  the judgment debtor consented to the jurisdiction of the original court [see paras. 35-36];
  • (ii)  the judgment debtor is a natural person who was ordinarily resident in the original country when the proceeding that led to the judgment was commenced [see para.53-56];
  • (iii)  the judgment debtor is an artificial person that carried on a business in the original country and the judgment relates to the business carried on in that country [see para. 57-58];
  • (iv)  the judgment is in respect of obligations arising out of a contract that to a substantial extent was to be performed by the judgment debtor in the original country [see para. 60];
  • (v)  the judgment is in respect of obligations arising out of business activities that to a substantial extent were carried on by the judgment debtor in the original country, and the judgment debtor was either a natural person ordinarily resident in the country or an artificial person with a fixed place of business in the country at the time the obligations are said to have arisen [see para. 61];
  • (vi)  the judgment is in respect of obligations arising out of the sale of property, services, or both to the judgment creditor in the original country, for use other than in the judgment creditor's trade or profession, and the judgment debtor solicited the judgment creditor's business in that country [see para. 62];
  • (vii)  the judgment is in respect of a tort committed by the judgment debtor in the original country [see para. 63]; or
  • (viii)  there was otherwise a real and substantial connection between the original jurisdiction and the facts on which the proceeding that led to the judgment was based.
[Note: This drafting reflects the "third option" of those described in paras. 41-51. These are: Option 1 (paras. 41-47): Use the "real and substantial" criterion in (viii) as the basic test, listing the more specific criteria in (ii) to (vii) as cases where the real and substantial connection is presumed to be present. . Option 2 (paras. 48-49): Include the specific criteria in (ii) to (vii) as conclusively valid grounds for enforcement and omit the open-ended criterion in (viii). Option 3 (para. 51): Include the specific criteria in (ii) to (vii) as conclusively valid grounds for enforcement but include the "real and substantial" test to allow for cases falling outside the specific criteria in (ii) to (vii).]

Exception to recognition of a foreign judgment

4.   A foreign judgment that is otherwise entitled to be recognized in [enacting province or territory] must not be recognized to the extent that it is contrary to an earlier judgment of a court of [enacting province or territory] or an earlier judgment of a foreign court that is binding on the parties for the purposes of a legal proceeding in [enacting province or territory].

Enforcement of an order in a foreign judgment

5.(1)  If a foreign judgment is recognized under this Act, the judgment creditor has the right to enforce an order in the foreign judgment in the following manner:

(a)  if the order is for the payment of money, the judgment creditor may bring an action on the order as a debt; and

(b)  if the the order is that the judgment debtor must do an act other than pay money, or refrain from doing an act, the judgment creditor may bring an action on the order as if it were a cause of action that entitled the judgment creditor to the same order made by the [superior court of general trial jurisdiction of enacting province or territory].

[Note: Another option would be to provide for a registration procedure, at least for money judgments, as does the Uniform Enforcement of Canadian Judgments Act; see paras. 85-89. A similar option with respect to non-money judgments would be to allow a summary application to obtain a declaration of recognition of the foreign order.]

(2)  In a proceeding brought by a judgment creditor to enforce an order in a foreign judgment, the [superior court of general trial jurisdiction of enacting province or territory] may make an order staying the proceeding, subject to any terms and for any period the court considers appropriate in the circumstances, if

(a)  the judgment debtor has brought, or intends to bring, in the original country a proceeding to set aside, vary or obtain other relief in respect of the judgment [cf. UECJA s. 2(b)],

(b)  the judgment was rendered in contradiction of fundamental rules of procedure [see paras. 65-67],

(c)  the judgment is contrary to public policy in [enacting province or territory] [see paras. 68-71], or

(d)  the judgment is for damages greatly in excess of the amount, including costs, that would have been awarded under the law of [enacting province or territory] on the basis of the findings of law and fact established in the original court, and, in the light of the relationship of the judgment debtor and the judgment debtor's activities to the original country, it is manifestly unjust that the judgment debtor be liable for damages on such a scale [see paras. 72-81].

(3)  If a judgment creditor has brought a proceeding to enforce an order in a foreign judgment, the [superior court of general trial jurisdiction of enacting province or territory] may make an order

(a)  staying or limiting the enforcement in [enacting province or territory] of an order against the judgment debtor [Cf. UECJA, s. 2(a)],

(b)  varying an obligation of the judgment debtor to make future payments of maintenance or support [see paras. 21-25], or

(c)  varying or discharging an obligation of the judgment debtor to do an act other than pay money or refrain from doing an act, on the same grounds and on the same terms as it could have done if the order in the foreign judgment had been made by the [superior court of general trial jurisdiction of enacting province or territory].

(4)  The [superior court of general trial jurisdiction of enacting province or territory] must not make an order varying or discharging the obligations of a judgment debtor, or staying or limiting the enforcement of the obligations, on the grounds that

(a)  the original court lacked jurisdiction over the subject matter of the proceeding that led to the judgment or over the judgment debtor under
  • (i)  principles of private international law not included in this Act, or
  • (ii)  the domestic law of the province or territory where the judgment was made
(b)  the [superior court of general trial jurisdiction of enacting province or territory] would have come to a different decision on a finding of fact or law or on an exercise of discretion from the decision of the original court, or

(c)  a defect existed in the process or proceeding leading to the judgment.

Foreign judgment as res judicata


6.  If a foreign judgment is recognized under this Act, any final decision that one of the parties does or does not have a cause of action against another of the parties, and any issue or law that was or could have been raised as part of the basis for such a decision, is binding on those parties for the purposes of a subsequent legal proceeding in [enacting province or territory].
Foreign judgment that is not recognized

7.  If a foreign judgment is not recognized under this Act, it confers no rights on the parties in [enacting province or territory].

Time limits for proceedings to enforce an order in a foreign judgment

8.  No proceeding to enforce an order in a foreign judgment shall be brought

(a)  in the case of an order to pay money, later than [xxx] years after the day on which the judgment became enforceable in the country where it was made,

(b)  in the case of a final order to do an act other than pay money or refrain from doing an act, later than [xxx] years after the day on which the judgment became enforceable in the country where it was made, or

(c)  in the case of an interlocutory order, later than [xxx] months after the day on which the judgment became enforceable in the country where it was made. [See para. 92.]

Orders for payment of foreign currency

9.  If a judgment creditor brings an action on an order in a foreign judgment to pay money and any amount to be paid is expressed by the foreign judgment in the currency of a country other than Canada, the [superior court of general trial jurisdiction of enacting province or territory] must

(a)  give the judgment debtor the option of paying an equivalent amount in Canadian currency, calculated at the rate of exchange on the date payment is made [see paras. 93-94.], and

(b)  unless the court finds that another rate would be more appropriate, order the judgment debtor to pay interest, running from the date of the foreign judgment until the date the judgment debtor pays the amount, at the prime rate prevailing in the country in whose currency the amount was expressed [see para. 95].

August 1996

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