Private International Law – Prof. Walsh Summer 2005


Defenses Against Recognition



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Defenses Against Recognition

1. Procedural Fairness Requirement



3155.  A Québec authority recognizes and, where applicable, declares enforceable any decision rendered outside Québec except in the following cases: (…)
3) the decision was rendered in contravention of the fundamental principles of procedure; (…)

  • 3155(3) underscored by fundamental ideas of fair procedure such as right to be served notice of proceeding, or Df not allowed to present defense. This translates to a broader fundamental right to be heard and present a case.


3156.  A decision rendered by default may not be recognized or declared enforceable unless the plaintiff proves that the act of procedure initiating the proceedings was duly served on the defaulting party in accordance with the law of the place where the decision was rendered.
However, the authority may refuse recognition or enforcement if the defaulting party proves that, owing to the circumstances, he was unable to learn of the act of procedure initiating the proceedings or was not given sufficient time to offer his defence.

  • What about procedures that allow default judgment? Is that in violation of fundamental principles of procedure. Art 3156 clarifies this. So judgment in default is ok as long as you were notified of proceedings. Can’t throw notice in garbage and then say that your fundamental principles of procedure were violated.

  • Caveat in para 2that explains what is meant by being truly notified.



2. Taxation Exception



3155.  A Québec authority recognizes and, where applicable, declares enforceable any decision rendered outside Québec except in the following cases: (…)
6) the decision enforces obligations arising from the taxation laws of a foreign country.

  • Fairly universal exception.

  • CML equivalent is broader. It encompasses not only taxation laws, but also penal laws which include criminal law and regulatory fines/offences.

  • Instead, taxation issues are dealt with at an administrative and executive level through bilateral agreements and criminal offences are dealt with by extradition.

  • Criminal law is another procedure and is authorities of state that apply to legal system for enforcement. Plus, under Can federation, Crim is federal.

  • Why tax and penal laws? Foreign tax and penal laws are not recognized because they largely reflect public policy of another state. What is misbehaviour in one place may be acceptable somewhere else.

  • So the CML idea was that they wanted to avoid open public policy debate about taxation and penal laws of another state. This has potential for diplomatic incident. Hence the a priori rule.

  • If in particular case there is problem from public policy perspective of accepting then Qc uses 3155(5)



Other ways of Revoking

1. Public Order



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; (…)

  • Manifestly inconsistent is something we can’t possibly agree with. Public policy understood in the context of international relations.

  • This is Quebec’s response to broader problems of the public policy substance of foreign laws.

  • Public order well understood and accepted. Can’t be at level of we don’t like what you do and in our society we don’t live like that but it has to be at very fundamental level (e.g. human rights are protected, gambling is no longer considered “manifestly inconsistent” even though it is illegal in Canada).



2. Conflicting Judgments



3155.  A Québec authority recognizes and, where applicable, declares enforceable any decision rendered outside Québec except in the following cases: (…)
4) 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 first instance, or has been decided in a third country and the decision meets the necessary conditions for recognition in Québec; (…)

  • Counterpart to Jurisdictional Rules

  • Aim is to prevent recognition of conflicting judgments. So 3155 says that Qc authority does not give effect to judgment that could contradict the Qc judgment (or Qc recognized judgment).

  • For example, if there are Qc proceedings pending and someone comes with Ont judgment, Qc wont hear it. Same thing if court says there’s decision on 3rd country.

  • [For third countries, is it the first to be rendered? Or recognized?]


Traditional Common Law Rules


  • The same CML rules were in effect for over 100 yrs until Morguard decision. These rules were simple:

  • Judgments from another province or country would be recognized on two bases:

    1. Presence or residence of defendant in foreign court territory when served w/ notice

    2. Voluntary submission whether by way of choice of court agreement or showing up (attornment).

  • Morguard speaks to more recent legislation that essentially had codified the previous rules. Leading up to Morguard, other recent legislation on the procedural Rules of Court in the different provinces began to allow a plaintiff to serve a defendant outside the province under certain circumstances. These are really still, even now, just procedural rules, but they have been applied in such a way that it is assumed that if one can serve the defendant under these rules, then the court had competence to assume jurisdiction. In that way, Morguard responded to the situation where courts were assuming broader jurisdiction but refusing to recognize any sister province judgments.

  • Morguard has now provided for a third, broader, and “constitutionally imperative” basis for recognition of sister province judgments – that is the subject matter criterion of “real and substantial connection”.




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