Foreign Judgments - Common Law 1996

C. Conditions for recognition and enforcement General

[30]  Once the scope of applicability of a uniform act is determined the next question to address is that of the general criteria for recognition and enforceability of foreign judgments in order to allow for their enforcement, i.e. conditions for recognition and enforcement. This will be the most important part of any uniform statute. It will determine which foreign judgments will be recognized or enforced in a Canadian province and which will be denied such recognition or enforcement.

[31]  A primary concern of the common law rules on the recognition and enforcement of foreign judgments has been the territorial competence of the foreign court. This rests on the assumption that the original court must have a legitimate claim to subject the defendant to its jurisdiction. A defendant's assets here should not be exposed to the enforcement of a foreign judgment where it was unfair under the circumstances to expect the defendant to defend the action in the foreign country. The common law approach has been to define certain connections with the original court (presence of the defendant, consent by the defendant, or real and substantial connection with the original court's jurisdiction) as making its assertion of jurisdiction legitimate. It is possible by statute or treaty to dispense with territorial criteria and to give blanket recognition to all of a country's judgments, if the jurisdictional practices of that country are regarded as bound in every case to be compatible with Canadian notions of fairness. In the domestic context, this is in part the approach of the Uniform Enforcement of Canadian Judgments Act, because that statute was linked to the assumption that other provinces would adopt the Uniform Court Jurisdiction and Tranfer of Proceedings Act (1994 ULCC Proceedings) and so harmonize their jurisdictional practices.

[32]  Even if the foreign court was a suitable place to hear the original action we might be reluctant to enforce a resulting judgment in Canada if the procedures followed by that court failed to conform to our notions of due process. To offer three examples, if the foreign court failed to give the defendant notice of the original action and proceeded on an ex parte basis, or if the foreign court refused to give one of the parties a chance to present its case, or if the foreign court was biased between the parties we would be reluctant to enforce a resulting judgment. This concern is dealt with under the heading of defences to enforcement.

[33]  Even if the foreign court were an appropriate place to hear the original action and employed unobjectionable procedures, we might be reluctant to enforce a resulting judgment if the foreign court applied a rule or standard of substantive law which we found deeply objectionable. This, too, is dealt with under the heading of defences to enforcement.

[34]  Sections 2, 3 and 4 which follow deal in more detail with the concerns in the preceding three paragraphs. Section 5 addresses some residual issues.

2. The foreign court's territorial competence

(a)   Where the defendant consents to the foreign court's jurisdiction

[35]  The common law has always regarded the territorial limits on a foreign court's jurisdiction as irrelevant if the defendant consented to its exercise of jurisdiction. Consent could be by appearing in the proceeding, by the defendant's having initiated the litigation as plaintiff in the same court, or by the defendant's previously having made a genuine agreement to submit to that court's jurisdiction. A defendant who did any of these things, and thus attorned to the foreign court's jurisdiction, could not afterwards dispute the foreign court's right to impose liability on the defendant.

[36]  We think there will be little dispute that a future statute should likewise treat consent as sufficient to justify recognition or enforcement. The only point on which the common law is unsettled is what degree of participation in a foreign legal proceeding constitutes attornment. The English courts regard the defendant as having submitted, even if all the defendant did was to apply to the court to decline jurisdiction (Henry v. Geoprosco Int'l Ltd., [1976] Q.B. 726). Canadian courts have on the whole rejected this view and treat the making of any type of jurisdictional argument to the foreign court as falling outside the category of attornment (Dovenmuehle v. Rocca Group Ltd. (1981), 34 N.B.R. (2d) 444 (C.A.), aff'd, [1982] 2 S.C.R. 53; Re McCain Foods Ltd. (1979), 103 D.L.R. (3d) 724 (Ont. H.C), aff'd, 103 D.L.R. (3d) 724 at 734 (Ont. C.A.), leave to appeal refused, 31 N.R 449n (S.C.C.)). We favour the latter view for incorporation in a statute. It is in the interests of the international legal order that defendants not be discouraged from trying to resolve jurisdictional disputes at the outset, before the foreign court. If they do so, then lose the jurisdictional argument and withdraw, they should not be treated worse than if they had never appeared at all.

(b)  Where the defendant does not consent to the foreign court's jurisdiction

[37]  As far as extraprovincial judgments are concerned, the Canadian common law regards a defendant who did not consent to the other province's exercise of judicial jurisdiction as nevertheless bound by it in two circumstances: (1) if the defendant was served with process in the territory of the other province, or (2) if a real and substantial connection existed between the facts giving rise to the action and the other province (Morguard). Judgments in default of appearance can be enforced against the defendant if either of these circumstances was present. It is clear that (1) also applies to foreign judgments, but it is not altogether whether, or to what extent, (2) does. The Morguard decision, and the subsequent Supreme Court of Canada decisions that considered it, were all concerned with Canadian judgments. However, lower courts have almost unanimously extended the Morguard principle to judgments from other countries. Therefore, we assume for the present purpose that condition (2) is also a ground for recognizing and enforcing a foreign judgment where the defendant has not consented to the foreign court's jurisdiction.

[38]  The question with respect to a foreign judgments statute is how closely to stick to the common law criteria for recognition, where the judgment is a default judgment against a non-consenting defendant.
  • (i)  Preliminary question 1: territorial criteria or blanket recognition?
[39]   A first choice to be made is as to whether the recognition of default judgments should be subject to any territorial criteria at the recognition end. The Enforcement of Canadian Judgments Act takes the approach that any jurisdictional issue ought to be sorted out in the original (Canadian) court. Therefore, the statute provides simply that any judgment from another Canadian jurisdiction must be enforced, without any jurisdictional test being applied by the recognizing court. It is assumed that the original court's jurisdiction is consistent with appropriate constitutional standards and with fair process. As already noted, this is premised on the adoption by other provinces of the CJTPA. Such an approach would certainly not be possible in relation to judgments from outside Canada generally, since jurisdictional practices in other countries vary enormously. However, there is no reason why legislation could not provide two grounds for recognition: (1) the country of origin is on a list of countries, whose judgments are recognized without any question as to territorial competence; (2) the judgment is from a country not on the list, but meets the statute's criteria for territorial competence. A list as suggested in (1) might include, for example, all the European Union countries, because their jurisdictional practice is well known, uniform and (we assume) acceptable to Canadian standards. (Judgments based on the "exorbitant" grounds permitted by the Brussels Convention would presumably be excepted.)

[40]  One advantage of having a list of countries whose judgments (either with defined exceptions or without exception) would be recognized without any question of territorial competence would be predictablity. Another would be that it opens up the possibility, adverted to earlier, of a two-tiered statutory scheme whereby countries that are prepared to enforce Canadian judgments to a particular standard will be entitled to a readier enforcement of their judgments in Canada. In fact, if such a two-tier system were adopted, there are probably compelling reasons for tying it to a system of bilateral treaties, or perhaps less formal agreements, between Canada and the foreign country in question rather than a decision by each enacting province. The latter could lead to a system of differential enforcement from one province to another, with a foreign country being on the "A list" in some provinces but not others. Lack of uniformity is one of the things the proposed model Act is supposed to correct. We note also that some commentators have suggested to us that in their view a two-tiered system has serious disadvantages, namely, that it erects what might be seen as invidious distinctions between some countries and others, to the detriment of Canada's foreign relations. At the very least that is a further argument for tying any such system to decisions by Canada rather than by provinces.
  • (ii)  Preliminary question 2: specific territorial criteria or general criterion?
[41]  Assuming territorial criteria are used in the statute, the next issue is whether to work with a list of territorial connections with the original country that are sufficient for recognition, or with a general criterion paralleling the one the Canadian common law has developed, "real and substantial connection", also put more broadly as compatibility with "order and fairness". We will consider how a general or omnibus criterion could be framed, and then discuss the reasons that can be argued for and against it as compared with a closed list of territorial criteria.

[42]  The matter is complicated because the requirement for order and fairness may have constitutional status, so that any statute which attempted to specify what was meant by order and fairness would run the risk of being found unconstitutional if the courts came to a different view than the statute's drafters did about how that requirement should be made specific. Even if the order-and-fairness requirement, as applied to foreign judgments, does not have full constitutional status, it certainly does have that status for extraprovincial judgments. And there seems good reason to ensure that the standard applied to foreign judgments as at least as stringent as in the intra-Canadian context.

[43]  In our view, if a general criterion is adopted, the approach of an existing uniform statute of the Uniform Law Conference strikes an acceptable balance between specificity and open-endedness. The Uniform Court Jurisdiction and Proceedings Transfer Act (UCJPTA) addresses this question within Canada. The territorial competence of a Canadian court, as defined in s. 1 of the Act, is established by the presence of any of the listed jurisdictional bases in s. 3, the final one of which is:

(e)  there is a real and substantial connection between [enacting province or territory] and the facts on which the proceeding against that person is based.

The Act then goes on, in s. 10, to provide:

s. 10.  Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between [enacting province or territory] and the facts on which a proceeding is based, a real and substantial connection between [enacting province or territory] and those facts is presumed if . . . .

There then follows a list of examples which we do not reproduce here. The opening words of s. 10 show that the examples listed in the remainder of that section operate only as non-conclusive presumptions. Their presence in a given case does not preclude the party opposing enforcement from arguing that no substantial connection exists. Likewise their absence does not prevent the party seeking enforcement from arguing that such a connection does exist.

[44]  The UCJPTA strikes a good balance between specificity and open-endedness, and it probably conforms to the requirments of the constitution. Subject to one concern which we mention below, there is no reason why the approach to territorial competence should differ depending on whether the judgment is a foreign or merely an extra-provincial one. In addition there are obvious benefits if the approach to territorial competence for intra-Canadian judgements is identical that for foreign ones: case law developed under one statute can inform that developed under the other. For that matter, the link between the two could be made explicit by providing simply in the foreign judgments statute that a foreign judgment is entitled to recognition if the foreign court had territorial competence as defined in the UCJPTA.

[45]  There is one aspect of territorial competence which is not directly touched on in the UCJPTA but which might be addressed in legislation dealing with foreign judgments. The foreign court might have had territorial competence according to the "real and substantial connection" type of criteria, but still have been a seriously inconvenient forum for litigation of the original action. In a Canadian court this would normally be resolved by a motion to decline jurisdiction on the basis of forum non conveniens, but a foreign court might not accept arguments of forum non conveniens, or, if the defendant did not appear before the foreign court, the issue of forum conveniens would not have been raised at all. Should a defendant be able to resist the enforcement of a foreign judgment on the ground that the foreign court was a seriously inconvenient forum? The UECJA did not need to address this issue in the context of intra-Canadian judgments, since all Canadian provinces employ the doctrine of forum non conveniens and it is part of the UCJPTA. However, not all foreign courts follow the same approach.

[46]  In the United States the Uniform Foreign Money-Judgments Recognition Act recognizes this factor as a discretionary ground for non-recognition. S. 4 of that model statute authorizes refusal of recognition where the U.S. court "believes the original action should have been dismissed by the court in that foreign country on grounds of forum non conveniens." This ground for denying enforcement operates solely where the foreign court took jurisdiction "only on the basis of personal service". Since mere personal service does not meet the UCJPTA's initial test for territorial competence, there may be less need for a provision of this sort on Canada. We see no overwheleming argument in favour of a provision like s. 4 of the American Uniform Foreign Money-Judgments Act. Nevertheless this issue does not seem to have been considered in Canada, and, if the broader approach is taken, we recommend that consideration be given to including in any uniform act a discretionary right to preclude enforcement where a foreign court which had territorial competence was neverthless a seriously inconvenient place to litigate the original action.

[47]  The reasons in favour of a single omnibus criterion, albeit with listed presumptively adequate connections, have already been indicated. It would allow non-Canadian judgments to be recognized on the same criterion as Canadian judgments are recognized at common law, subject only to the forum non conveniens point just mentioned. It would avoid creating a third regime for the recognition of judgments by Canadian courts, one for the common law recognition and enforcement of Canadian judgments, a second for enforcement of Canadian judgments under the UECJA (assuming that Act comes to be broadly accepted), and a third, quite distinct, for the enforcement of non-Canadian judgments under the statute being discussed in this paper.

[48]  Probably the major reason that can be argued against a single omnibus criterion, and in favour of a closed list of territorial criteria, is greater predictability of result. One of the main problems with the Morguard approach, possibly exaggerated by some but nevertheless significant, is its uncertainty. The UCJPTA technique of a list of presumptively valid territorial grounds lessens the uncertainty but does not eliminate it, since the listed grounds are neither exhaustive nor conclusively valid. It can also be said that if a recognition and enforcement statute does little more than restate the Morguard test, why not just leave things as they are?

[49]  A secondary reason that can be argued against a single criterion paralleling the Morguard test is that it is too generous in comparison to the rules that most countries apply to the recognition of Canadian judgments. We do not have empirical grounds for saying whether this is in fact true, but it is widely believed that Canada is now at the liberal end of the spectrum when it comes to the recognition and enforcement of judgments from other countries.

[50]  The choice between an omnibus criterion and a closed list of territorial criteria therefore involves a number of rather complex pros and cons. We ourselves are in two (separate) minds on the issue. For the purposes of this discussion paper, we present the two options: (1) an omnibus criterion with presumptions, and (2) a closed list of specific territorial criteria, as equally viable.

[51]  There is also a third option that strikes a compromise between the two: (3) a list of specific territorial criteria that are conclusively sufficient (unlike the UCJPTA model, where they are only presumptively so), plus an additional, open-ended criterion - in effect, any case where, despite the lack of one of the listed territorial criteria, the court is satisfied that the "order and fairness" standard is met.

[52]  We now turn to some specific territorial criteria that might form part of a foreign judgments statute. We compare them to the existing law, and indicate whether we think they could be treated as conclusively or presumptively sufficient to entitle the foreign judgment to recognition in Canada.
  • (iii)    Specific criteria based on the place of service
[53]  At common law, a foreign court was traditionally regarded as having jurisdiction if the defendant was served with process while present in the foreign country. An artificial person was considered present if it carried on business there at a definite and reasonably permanent place.

[54]  We do not think that the place of service should be a criterion for territorial competence. In the case of natural persons, it was unclear whether the fact of service was enough if the person's presence in the foreign country was only transitory (Carrick Estates Ltd. v. Young (1987), 43 D.L.R. (4th) 461 (Sask. C.A.)). The Morguard principle makes it doubtful whether a natural person's presence in the jurisdiction, without any real and subsantial connection, is even a constitutionally viable basis for territorial competence. In the case of artificial persons, it was the carrying on of business, not the place of service, that was the real justification for taking jurisdiction. Moreover, the UCJPTA adopts criteria for territorial competence of Canadian courts based, not on the place of service, but on actual territorial connections. So, for the most part, does the new Canada-France Convention.
  • (iv)  Specific criteria based on the defendant's personal or continuing business connection with the foreign country.
[55]  A natural or artificial person with a strong and continuing connection with the foreign country cannot complain if it is made subject to the jurisdiction of that country's courts. However, the positions of the two types of defendant are somewhat different.

[56]  For natural persons, this kind of connection could be defined by a number of terms: ordinary residence (used in the UCJPTA), habitual residence, or domicile (used - but not in the Anglo-Canadian meaning - in the Brussels and Lugano Conventions, and in the Civil Code of Quebec). In the Canadian common law context, ordinary residence is probably the most appropriate term.

[57]  For artificial persons, the traditional criterion of carrying on business in the foreign country through a definite and reasonably permanent place has proved workable and is a familiar concept. It, too, is used in the UCJPTA (s. 7(c)) for defining the "ordinary residence" of a corporation. However, for the purposes of the recognition and enforcement of foreign judgments, we think that a corporation that is "present" or "ordinarily resident" in this sense in country X should not thereby be subject to the jurisdiction of X's courts in respect of litigation that has nothing to do with the business actually done in X. For the purpose of enforcing foreign judgments, we suggest the criterion for artificial persons should be that if the corporation carries on business in the foreign country it is bound by any judgment in a dispute arising out of the business carried on in that country. This qualification is used in the Brussels and Lugano Conventions, and also appears in the new Canada-France Convention .

[58]  In relation to artificial persons, the suggested criterion would be narrower than the territorial competence claimed in the UCJPTA, which is not limited by the origin of the dispute. Our own courts' jurisdiction, however, can be tempered with forum non conveniens. It must be remembered that criteria for the jurisdiction of a foreign court, for the purposes of recognition of the court's judgments, must be defined so that the enforcement of a default judgment would be fair. It is only in respect of default judgments that these criteria matter. If the judgment is in a defended proceeding, the basis for recognition is consent.
  • (v)  Specific criteria based on the connection with the foreign country of the facts giving rise to the litigation
[59]  Aside from the non-consenting defendant's presence in the foreign country, it is the connection between the foreign country and the subject matter of the proceeding that may justify recognition of the judgment. The common law gives guidance here only to the extent that cases applying the Morguard principle have established a pattern. Before Morguard a non-consenting defendant, who was not present in the foreign country, was not bound by any judgment. For the purposes of this discussion paper, we suggest the following four criteria as territorial connections that could be regarded as sufficient to warrant recognizing a money judgment. They are taken in part from the territorial connections that the UCJPTA lists in s. 10 (as presumed real and substantial connections), and in part from the decided cases on Morguard. No doubt more could be suggested, but these seem to us to cover most of the ground.

[60]  The judgment is in respect of obligations arising out of a contract that, to a substantial extent, was to be performed in the foreign country (cf. UCJPTA s. 8(e)(i); Moses v. Shore Boat Builders Ltd. (1993), 106 D.L.R. (4th) 654 (B.C.C.A.), leave to appeal refused, [1994] 1 S.C.R. xi.

[61]  The judgment is in respect of obligations arising out of the defendant's business activities in the foreign country and the defendant was ordinarily resident or had a fixed place of business in the foreign country at the time those activities were carried on. (This was the situation in a large number of the Morguard cases, such as Federal Deposit Ins. Corp. v. Vanstone (1992), 88 D.L.R. (4th) 448 (B.C.S.C.).) (This ground is distinct from the presence or ordinary residence of a corporation, which is a test applied at the time the proceedings are commenced, not at the time the facts giving rise to the action occurred. Also, this ground would apply to natural persons as well as artificial ones.)

[62]  The judgment is in respect of a consumer transaction, and consumer is entitled to the protection of the law of his or her own jurisdiction. For example, the rule could refer to obligations arising out of the sale of property, services, or both to a person in the foreign country, for use other than in the course of the purchaser's trade or profession, and the defendant solicited that person's business in that country (cf. UCJPTA s. 8(e)(iv); McMickle v. Van Straaten (1992), 93 D.L.R. (4th) 74 (B.C.S.C.)).

[63]  The judgment is in respect of a tort committed by the defendant in the foreign country. (Cf. UCJPTA s. 8(g); Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393.) This would be a broad criterion with a lot of room for argument, but Canadian courts are relatively familiar with the Moran v. Pyle approach to determining the locus of a tort.

3. Unfair Process: natural justice

[64]  As mentioned above, there is little debate over the fact that certain serious and fundamental defects in the process of the original foreign court give rise to a legitimate independent reason for refusing to enforce a judgment of that court. The Enforcement of Canadian Judgments Act provides that this is not a ground for refusing to enforce a Canadian judgment (s. 6(2)(c)). The reason for excluding this as ground for non-recognition of extraprovincial judgments is that unfair process is not a problem within Canada. Of course Canadian courts may fall prey to procedural irregularities, but any defect in the process of the original court may be dealt with on appeal in that original province, and, at least in theory, by the Supreme Court of Canada. No one suggests, however, that this rationale extends to foreign judgments.

[65]  The Civil Code of Québec precludes enforcement of a foreign judgment if "the decision was rendered in contradiction of the fundamental rules of procedure" (Art. 3155 (3)). This parallels common-law rules which preclude enforcement. Those common law rules adopt a number of labels, the most common being natural justice, fundamental justice and fraud. In addition to those general labels, some procedural issues are sometimes seen to stand on their own -- the best example here being the requirement that the judgment debtor must at least have received reasonable notice of the foreign proceeding.

[66]  In our view the question here is not whether procedural unfairness should be grounds for denial of recognition, but in how much detail the requirments of fair process should be expressed. We are aware that one of the charges against the common-law rules is that they are uncertain. That would suggest that a uniform statute attempt some more specific definition of procedural unfairness. Nevertheless it is not clear that this particular aspect of the common law rules (as opposed to some others) is one which has given rise to charges of uncertainty and vagueness. If it is not, then there would seem to be some advantage of including in any uniform act only a general requirement similar or even identical to art. 3155 of the Civil Code of Québec.

[67]  On the other hand, if this is perceived to be too uncertain it may preferable to be more specific by listing a number of grounds here: fundamental rules of procedure, fraud, insufficient notice to defendant. It is, of course, possible to get more specific than that: a model act could, for example, stipulate that the foreign judgment would not be enforceable if the defendant were denied the right to cross-examine witnesses or to make closing argument. We suggest that that level of specificity is unnecessary and unhelpful. It will never be possible to predict in advance all the types of procedural irregularities that the courts of all the countries in the world might indulge in. Something that, taken alone, looks like a procedural defect, might not be one if examined in context. But it seems unlikely that a statute could ever anticipate all such contexts. Accordingly we recommend that any uniform act address the issue of unfair process with a provision similar to art 3155 of the Civil Code of Québec, with the possible addition, should greater specificity seem necessary, of additional defences relating to fraud and lack of notice.

4. Offensive Substantive Law: public policy

(a) General

[68]  It should hardly require mentioning that the right to decline to enforce a foreign judgment that applied an offensive substantive law does not mean a right to decline any foreign judgment which applied a law different from that which the Canadian province in which recognition is sought would have applied. Before this requirement is met the foreign substantive law in question must be deeply offensive. We note that the public policy provision from the Enforcement of Canadian Judgments Act simply provides that an otherwise enforceable judgment may be denied enforceable where "the judgment is contrary to public policy in [the enacting province or territory]." (s. 6(1)(d)) The corresponding provision in the Reciprocal of Judgments Act is somewhat more expansive. It precludes enforcement where "the judgment was in respect of a cause of action which for reasons of public policy or for some similar reason would not have been entertained by the registering court . . . ." (s. 3 (f))

[69]  Neither of these statutes attempts to give greater specificity to the concept of public policy, and in that respect they parallel the approach to this subject in the Brussels and Lugano Conventions and in a a variety of comparable statutes in other jurisdictions. They also parallel the corresponding provision in the Québec Civil Code:

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

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

[70]  We think this general approach is correct. Despite the fact that declining to define this term means that, in this respect the model statute will not significantly alter the existing judge-made test, we think that (1) this is not an area in which existing uncertainty is a problem and (2) further specificity is impossible to achieve. We see no need for the phrase in the Reciprocal of Judgments Act, "would not have been entertained by the registering court . . . ." In our view the question is not whether the action would have been entertained, but rather where the foreign judgment in question would have been granted. In this respect the focus of the Québec Civil Code on "the outcome" is correct. Accordingly we prefer the formulation in the Enforcement of Canadian Judgments Act. Thus we recommend that any uniform statute on enforcement of foreign judgments contain a public policy defence parallel to that in the Uniform Enforcement of Canadian Judgments Act.

[71]  One commentator on a draft of this report suggested that the concern dealt with in the previous section (unfair process, denial of natural justice) could be dealt with under the public policy heading, and that judges might feel more comfortable in assessing alleged defects in foreign procedure if the issue were characterized as one of public policy. Although that is not our recommendation, it would certainly be possible to approach matters in this way, perhaps by defining public policy so as to make it clear that it embraces both substantive and procedural concerns.

(b) Punitive damages and damages for pain and suffering

[72]  A significant sub-category of offensive foreign law concerns the extraordinarily high awards under the categories of (1) punitive damages and (2) damages for pain and suffering that are issued by some courts, particularly the courts of some American states. These can exceed by several orders of magnitude the damages that might be awarded under those heads in a comparable action in this country. To the extent that we view such awards as inappropriate then, although we may view the substantive law which was applied in the original proceeding as inoffensive, we may view the remedial law in that proceeding as offensive.

[73]  One commentator on a draft of this report suggested that punitive damages in foreign judgments should be treated as penalties, with their enforcement in Canada prohibited entirely. Such a proposal would represent a considerable change in the existing law, but certainly merits discussion. In our view, given the fact that Canadian courts award punitive damages, there is insufficient justification for a blanket refusal to enforce foreign judgments containing punitive damages awards. We recommend a more restrained approach which we set out in the following paragraphs.

[74]  A possible deficiency of the common law here is that, for the most part, courts have seen themselves as required to deal with such awards on an all-or-nothing basis. Although the common law permits courts to examine separately various heads of damage -- possibly enforcing some head of damage which declining to enforce others -- it does not appear to permit adjustment or scaling down within individual heads of damage. Thus, either the high foreign award for punitive damages will be unenforceable on grounds public policy, or it will not be against public polciy, in which case the entire amount of the award must be recognized. There is no middle ground. Most commonly such awards are recognized in their entirely, and it is this fact which contributes to the perception, mentioned in the terms of reference, that Canadian defendants are at risk and that our attitude to foreign judgements is too lenient.

[75]  A possible avenue for statutory reform is to permit courts to recognize part but not all of an excessively high punitive damages or pain and suffering award. A precedent here is a provision from a proposed (but now abandoned) bilateral judgments enforcement treaty between the United States and the United Kingdom. Article 8A of the draft convention was inserted to please the U.K.

Where the respondent establishes that the amount awarded by the court of origin is greatly in excess of the amount, including costs, that would have been awarded on the basis of the findings of law and fact established in the court of origin, had the assessment of that amount been a matter for the court addressed that court may, to the extent then permitted by the law generally applicable in that court to the recognition and enforcement of foreign judgments, recognize and enforce the judgment in a lesser amount.

[76]  We do not set out the foregoing provision as a proposed model for a Canadian uniform act, merely as an example of a statutory provision which would permit a Canadian court to scale down certain foreign court awards with rejecting them entirely.

[77]  Should such a provision be considered there are several points which should be noted. First it is important to consider the putatively excessive foreign judgment in its entirety. For example, one explanation for some high American awards for punitive damages or for pain and suffering may be the fact American awards for court costs, unlike ours, do not generally award costs to the victorious party. In the U.S.A. even the winners must pay their own lawyer. Perhaps punitive damages are an attempt to compensate victorious plaintiffs for this arguably unfair costs rule. Presumably that is why the quoted provision from the draft U.K.-U.S.A. convention employed the words "including costs". More generally it is important, if an enforcing court is to be ptermitted to scale down one head of damage of a foreign award, that the enforcing court be directed to consider the alleged excessiveness in light of the entire award, including costs.

[78]  Secondly, we suggest that any such power to scale down excessive awards for punitive damages or pain and suffering should be exercised in light of the parties' residence and place of acting. While the parties' residence and place or acting are not relevant with respect to matters which are genuine public policy concerns, as we have noted above, we do not think that punitive damage awards fall into this category. They are matters of local economic policy, properly applicable to activities which take place within a jurisdiction, but (like antitrust matters) not necessarily properly extended to activities which take place elsewhere. For example, in the case of two American residents who are parties to an original action in an American court, we would presumably have little reason to refuse to enforce the full amount of the American award in this country. Our main concern is presumably with Canadian residents who are subject to excessive American damages awards. In addition it may be the case that we only seek to protect Canadian residents in respect of their actions which take place largely in this country. In short, unlike the provision above from the U.K.-U.S.A. draft treaty, any such provision should direct a Canadian court which is considering scaling back an excessive foreign award for pain and suffering or punitive damages, to find that in the light of the defendant's residence and the relationship of the defendant's activities to the foreign country, it is manifestly unjust that the defendant be exposed to damages on such a scale. This issue is a complex one and we acknowledge that it is not explored in detail here. To give courts such a discretion is to undermine significantly the certainty that a particular foreign judgment will be enforced. It is, however, a concern that is often raised in discussions of the current liberal approach to enforcing foreign, and especially United States, judgments. We suggest it merits further consideration and in that connection we note that the question of punitive damages is being explored in the discussions going on at the Hague Conference on Private International Law. Developments on this issue at the Hague Conference may provide a helpful model for a uniform Canadian act.

[79]  We note that, although there has been some voicing of concerns regarding high awards for punitive damages and for pain and suffering, particularly in American courts, there has as yet been no discussion of the sort of response we are discussing here. To our knowledge this sort of proposal is being advanced in Canada for the first time here. In light of that we do not feel confident in making a firm recommendation either way on this issue. Nevertheless we think it this may be a plausible and measured response to an acknowledged concern. In consequence, we recommend that the ULC give consideration to including in its uniform act a provision which would permit courts to scale back, without rejecting entirely, heads of damage which, by Canadian standards are so excessive as to offend our sense of fundamental justice.

5. Residual Matters

[80]  There are a couple of residual matters that are relatively uncontroversial. At common law no foreign judgment could be granted recognition unless it was final, and this common law rule was incorporated in the Reciprocal Enforcement of Judgements Act. This requirement is also explicitly included in the Civil Code of Québec (art. 3155 (2)) and the American Uniform Foreign Money-Judgments Act, and it is a ground for making an order staying enforcement under the UECJA. Subject to possible modification to take account of provisional measures and orders subject to variation, like maintenance orders, there seems little question that this should be a part of any uniform Canadian statute.

[81]   A related issue concerns foreign judgments which, while technically final, are being appealed or with respect to which the period for launching an appeal has not yet expired. Although this was not, strictly speaking, a bar to enforcement at common law, it was added as a defence to enforcement in both the Reciprocal Enforcement of Judgments Act and the Uniform Enforcement of Canadian Judgments Act. Again this requirement seems uncontroversial.

[82]  In addition, there are questions which arise when there is more than one court proceeding in respect of a single underlying matter. The Civil Code of Québec (art. 3155 (4) deals with that matter by precluding enforcement of a foreign judgment where a dispute between the same parties, based on the same facts and having the same object has given rise to a decision rendered in Québec, whether it has acquired the authority of a final judgment (res judicata) or not, or is pending before a Québec authority, in the first instance, or has been decided in a third country and the decision meets the necessary conditions for enforcement in Québec . . . .

A comparable provision appears in the new Canada-France Convention (not yet implemented), in the Brussels Convention (art. 27) and, as a discretionary ground for non-recognition, in the U.S. Uniform Foreign Money-Judgements Recognition Act. Again it seems relatively uncontroversial that a uniform uniform act for enforcement of foreign judgment should contain a provision making this at least a discretionary ground for non-recognition.

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