Current Uniform Acts
OPTION 1: The traditional ULC approach
The traditional ULC approach towards the implementation of private international law conventions can be characterized as the drafting of a separate and specific implementing act with a limited number of provisions whose purpose is to give force of law to a particular convention, the text of which is annexed to the statute by which it is implemented.
In the context of the implementation of the Canada-France Convention, it was suggested that this approach be slightly modified so as to provide, not only for the implementation of the Canada-France Convention, but also of similar conventions which may be entered into by Canada in the coming years. Under option #1, the proposed uniform implementing act is therefore of a more generic format with no specific reference to one particular convention. Subject to these changes, its provisions remain largely modelled on the traditional ULC approach.
Uniform Enforcement of Judgments Convention Act
Comment: The title of the proposed uniform act is general to cover as many conventions on enforcement of judgments as possible. In so doing it would remedy the need for the enactment of a separate implementing act each time a convention has to be implemeted. Only the list of designated countries would be amended from time to time.
1. In this Act, "convention" means the conventions existing with countries designated by [regulation] [order] and to which this Act gives force of law.
Comment: The section on definition, a usual feature of uniform implementing legislation, indicates to which conventions the act applies. In light of the comment made above, this section is drafted generally without mentioning any specific convention so as to refer to any conventions that might be concluded by Canada in the area of recognition and enforcement of judgments upon consultation with the provinces and territories. It would be sufficient for the enacting jurisdiction to list the names of countries with which such conventions will exist, as in the case of the Canada-France, by designating them either by way of a regulation or ministerial order depending on the choice of each jurisdiction.
There is no reference to the text of a convention being added in a schedule to the uniform act. From an implementation point of view the publication of the text of a convention is optional and not mandatory. Each jurisdiction will therefore decide on the need to publish the text of the Canada-France Convention and other such conventions as an annex to the act or elsewhere. Other alternatives to the publication of conventions as part of provincial statutes, including the use of a web site, such as that of the Department of Foreign Affairs, could also be explored.
Designation of jurisdiction and court
2. The [responsible Minister] shall,
(a) request that the Government of Canada designate [enacting jurisdiction] as a territorial unit to which the convention extends;
(b) determine the courts in [enacting jurisdiction] to which application for [registration or declaration of enforceability] of a judgment rendered by a court of a country with which a convention has been concluded may be made and request the Government of Canada to designate those courts for the purpose of the convention [.]
Comment: Section 2 contains standard paragraphs: see the Canada-UK Convention implementing legislation. They correspond to articles 24.1 and 25 of the Canada-France Convention.
There was some discussion of the need to refer in this section to the designation of an authority responsible for the recovery of maintenance in order to meet the requirement of article 10. 3 of the Canada-France Convention. The working group was finally of the view that such designation could best be done in the complementary arrangement to be concluded by the jurisdiction with France under article 26 of the Convention.
For more information generally on the Convention, please consult the Explanatory Report prepared by the Canadian delegation to the negotiations with France [to be available at the meeting in Whitehorse].
Convention in force and given force of law
3. From the date the convention enters into force in respect of [enacting jurisdiction] as determined by the convention, the convention is in force in [enacting jurisdiction] and its provisions are law in [enacting jurisdiction].
Comment: This is a standard and fundamental provision for the purpose of the implementation of a convention (see the Canada-UK Convention implementing legislation). It should be noted that the Canada-France Convention will apply to judgments rendered on maintenance matters, status of natural persons, and custody and access to children even if they were rendered before the Convention came into force for the jurisdiction. See article 2 of the Convention.
4. The Attorney General shall cause to be published in the [named publication]
(a) the date the convention comes into force in [enacting jurisdiction];
(b) the courts to which applications for [registration or declaration of enforceability]
of a judgment rendered by a court of a country with which a convention has
been concluded may be made [;
(c) the arrangements that may be completed in application of such convention .]
Comment: Paragraphs (a) and (b) are standard (see the Canada-U.K. Convention uniform implementing statute). Paragraph (c) is added to account for article 26 of the Canada-France Convention, likely to be reproduced in other similar treaties, which enables the enacting jurisdiction and the treaty country to conclude arrangements to assist in particular in the application of the maintenance recovery scheme. It would appear appropriate that such arrangements be published to inform judgment creditors and debtors of the complementary requirements concerning recognition and enforcement of orders. The text of paragraph (c) is presented between brackets as it will be up to each enacting jurisdiction to decide whether to include it.
Prevalence of this act:
5. Where there is a conflict between this Act and any other act on recognition and enforcement of foreign judgments, this Act prevails [.] [subject to the following exceptions provided by another act: ].
Comment: This is a standard and fundamental implementing provision (see the Canada- UK Convention implementing legislation). It is aimed at harmonizing the responsabilities of the implementing jurisdiction under this act with those under provisions of other acts or rules on matters similar to those covered by the convention.
In the past, this section was drafted in very broad terms so as to refer to "any act or regulation". This time, in order to avoid unnecessary confusion, it was felt necessary to narrow the application of the prevalence clause to "other act on recognition and enforcement of foreign judgments". In addition, as suggested by the phrase in brackets, each implementing jurisdiction may wish for sake of clarity to identify in this section domestic rules of a "public policy/order" nature that will prevail over the rules of the convention. It is conceivable that even though they may conflict with the treaty rules, as in the case of a blocking provision against the enforcement of foreign asbestos judgments, such domestic rules could remain applicable.
It is a well-accepted principle in the area of conflict of laws as well as in private international law conventions, like the Canada-France Convention in articles 4 (d) and 16 (d), to refer to "ordre public/public order" in exceptional circumstances, as determined by local laws, to justify a refusal to recognize or enforce a foreign judgment. However, this defense has very seldom been invoked and it has been construed narrowly (Castel, Canadian Conflict of Laws, p. 164, as quoted in United States of America v. Ivey, (1995), 26 OR 533; 130 DLR (4th) 674 (Ont. Gen. Div.; upheld on appeal, (1996) 30 O.R. (3d) 370 (Ont. C.A.) ; leave to appeal to the S.C.C. denied on May 29, 1997), partly reproduced and discussed in Baer, Blom, Edinger, Rafferty, Saumier, Walsh, Private International Law in Common Law Canada, pp. 55-64).
The meaning of "ordre public/public order" has been debated for centuries and may vary according to different legal systems. Thus it has been difficult to come up with a suitable definition in the context of conventions. As mentioned in Castel, supra, "[I]n the absence of legislation establishing the stringency of public policy, it is for the courts to define its precise limits according to their judgment and good conscience."
Castel, supra, p. 163, also writes: "evidence of public policy can be found in the total body of the constitutional and statute law as well as the case law of the forum, since it will reflect the local sense of justice and public welfare". However, "public policy must connote more than local policy as regards internal affairs"; "[P]ublic policy is relative and in conflicts cases represents a national policy operating on the international level" (id.). "If foreign law (or judgment) is to be refused any effect on public policy grounds, it must at least violate some fundamental principle of justice, some prevalent conception of good morals, or some deep-rooted tradition of the forum ", (id. pp. 163- 164). (Emphasis added).
In the context of its implementing legislation, the enacting jurisdiction could therefore identify the rules that would constitute exceptions to the prevalence of the treaty rules on the basis of the above-mentioned principles. It should however be understood that in doing so the rules of the convention cannot not be modified, limited or otherwise thwarted by the prevalence of domestic rules with the result of putting Canada in breach of szits international obligations.
6. The [Lieutenant Governor in Council] may make regulations to:
(a) prescribe the proceedings necessary for maintenance recovery;
(b) designate the competent authority to certify copies of judgments to be enforced abroad;
(c) designate the countries with which a convention has been concluded ; or
(d) otherwise carry out the intent and purpose of this Act.
Comment: This section on regulations is a standard provision which is usually drafted in very broad terms (See the Canada-UK Convention implementing legislation). It has appeared opportune to list a number of possible subject matters as general guidance.
NOTE: Special attention should be drawn early in the implementation process to the need for changes to the Rules of Court. Some measure of uniformity would appear desirable between various rules of court applicable to enforcement proceedings including that under specific conventions. See for instance in the case of the Canada-United Kingdom Convention: PEI (R.73); Ontario (R.73); B.C. (R.54); Manitoba (R.65).
7. (Proclamation section)
Comment: Some jurisdictions have legislation implementing a convention come into force on Royal Assent with the understanding that the law has no effect until the convention comes into force for that jurisdiction. Other jurisdictions prefer to wait and proclaim the legislation in force the day the convention comes into force.
Note: For reasons mentioned already, the proposed implementing legislation does not contain a schedule to the act to include the text of the convention being implemented.