Parameters of Forum of Inquiry -
Idea of territorial sovereignty means (1) foreign judgments have no authority prima facie outside the jurisdiction in which they were rendered and (2) respect for the sovereignty of other countries
3157. Recognition or enforcement may not be refused on the sole ground that the original authority applied a law different from the law that would be applicable under the rules contained in this Book.
3158. A Québec authority confines itself to verifying whether the decision in respect of which recognition or enforcement is sought meets the requirements prescribed in this Title, without entering into any examination of the merits of the decision.
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However, in the appropriate circumstances, where that jurisdiction was properly exercised, other countries should provide a mechanism whereby judgments can be recognized and enforced within their own borders.
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This enhances flexibility, consistency, and reduces what would be exorbitant costs of litigating an issue in every relevant jurisdiction.
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Respect for the rule of law and avoiding duplicitous litigation and double jeopardy, are generally accepted.
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There is also reciprocal self-interest on the part of all states – their judgments are more likely to be respected and enforced abroad – promotes 2 goals at the level of the individual citizen:
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Legal remedies will be effective even if one of the parties lives in another jurisdiction or after the fact moves to another jurisdiction; protect a weaker party who may not have the resources to litigate the merits of the claim in a multitude of jurisdictions
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Promote the federal character of a country and the national economy that does not have barriers set up that prevent the circulation of persons and products – the constitution’s goals include an economic union with free trade across borders
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First point that CCQ makes on the enforcement of foreign judgments is that when someone comes to QC to have a foreign judgment recognized and enforced they have to do resort to the CCQ rules
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3157 and 3158 say that Quebec courts don’t take an action to enforce a foreign judgment as an appeal. They evaluate only the rules on foreign judgments. This means that the court does not question the difference in law (3157) or even the difference in outcome (3158) from its own law and reasoning. The foreign court’s own criteria of justice should be respected unless there is a good reason.
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This avoids duplication of litigation and once again deals with sovereignty. Dissatisfaction with the outcome should be dealt with by an appeal in the original jurisdiction.
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What’s the difference between recognition and enforcement? All cases require recognition; not all cases require enforcement – if a decision on adoption is recognized it does not need to be enforced
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How are foreign judgments recognized?
2 Conditions for Recognition of Foreign Judgments
1. Jurisdiction of Foreign Authorities
3155. A Québec authority recognizes and, where applicable, declares enforceable any decision rendered outside Québec except in the following cases:
1) the authority of the country where the decision was rendered had no jurisdiction under the provisions of this Title; (…)
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The judgment must comply with the jurisdictional rules of Québec – the country where recognition is being sought – otherwise there would be no barriers. If they only had to satisfy their own rules they could set things up so that they would have exorbitant jurisdiction over anything and always be recognized.
3164. The jurisdiction of foreign authorities is established in accordance with the rules on jurisdiction applicable to Québec authorities under Title Three of this Book, to the extent that the dispute is substantially connected with the country whose authority is seised of the case.
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This one’s the general rule for foreign jurisdiction
3165. The jurisdiction of a foreign authority is not recognized by Québec authorities in the following cases:
1) where, by reason of the subject matter or an agreement between the parties, Québec law grants exclusive jurisdiction to its authorities to hear the action which gave rise to the foreign decision;
2) where, by reason of the subject matter or an agreement between the parties, Québec law recognizes the exclusive jurisdiction of another foreign authority;
3) where Québec law recognizes an agreement by which exclusive jurisdiction has been conferred upon an arbitrator.
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This article explicitly preserves the possibilities for exclusive jurisdiction or choice of forum to be respected so that these cannot just be circumvented by obtaining a judgment where they don’t recognize these and then transferring it back to Quebec.
3168. In personal actions of a patrimonial nature, the jurisdiction of a foreign authority is recognized only in the following cases:
1) the defendant was domiciled in the country where the decision was rendered;
2) the defendant possessed an establishment in the country where the decision was rendered and the dispute relates to its activities in that country;
3) a prejudice was suffered in the country where the decision was rendered and it resulted from a fault which was committed in that country or from an injurious act which took place in that country;
4) the obligations arising from a contract were to be performed in that country;
5) the parties have submitted to the foreign authority disputes which have arisen or which may arise between them in respect of a specific legal relationship; however, renunciation by a consumer or a worker of the jurisdiction of the authority of his place of domicile may not be set up against him;
6) the defendant has recognized the jurisdiction of the foreign authority.
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Establishes an exclusive rule “is recognized only in the following cases…”
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Sub paras 1 and 2 relate to location
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Sub paras 3 and 4 provide for subject matter connection
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Sub paras 5 and 6 deal with voluntary submission. This is the same ground for recognition and enforcement as for Qc courts themselves. Only criticism is that wording is not parallel even if intent is. In particular it says “recognized” and not “submitted to”. This could be interpreted differently even if a diff is hard to see.
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Compare 3168 with 3148. 3148 is for Qc jur’n so this is the parallel for foreign jur’n
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Note that 3148 gives broader grounds to Quebec courts to assert jurisdiction than 3168 gives credit to foreign jurisdiction. 3168 only recognizes foreign judgments with subject matter connections where connection is all in one place. E.g. for 3148 it is enough that one of obligations of K need to be performed in Qc. For foreign judgments all obligations have to be performed there.
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This is rationalized (by Lebel in Spar) by the doctrine of forum non conveniens. Quebec courts will decline jurisdiction given by 3148 if there is not enough connection. This discretion is opposed to the mandatory nature of 3168 but is meant to provide a parallel. However, this exposes the flaw that under subject matter connections (i.e. 3168(2) and (3)) you could potentially never have a foreign judgment recognized. Instead, you must resort to 3168(1), the defendant connection. This drastically limits the forum.
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Can a Quebec court likewise refuse to recognize foreign judgment on basis that it was not convenient forum? No. There is no room for Qc court to do so. If the 2 criteria above are satisfied, Qc court must recognize the ruling.
2. Finality Requirement
3155. A Québec authority recognizes and, where applicable, declares enforceable any decision rendered outside Québec except in the following cases: (…)
2) the decision is subject to ordinary remedy or is not final or enforceable at the place where it was rendered; (…)
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This is second condition to recognize foreign judgment.
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What does final and enforceable mean? There must be no more recourses or remedies open to either party (i.e. no appeals, no revocation, etc.).
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This is opposed to the CML rule where it is recognizable even if an appeal is possible until and unless the prospective appellant brings evidence of an intent to appeal (in which case they would stay the proceedings).
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The main difference then is one of onus. CML places onus on Df to go show that he has filed appeal.
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This is more favourable to the plaintiff and has a procedural advantage of allowing provisional measures during the appeal to protect the claimant (e.g. from the absconding of the assets sought).
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Balance is that under both rules the concern is that appeal process could make Pl become Df and now have to respond in other jur’n’s courts.
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CML then shifts onus to the losing party.
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