Uniform Enforcement of Canadian Judgments and Decrees Act Class Comments:
Enforcement proceedure that is contemplated is an application for registration of foreign judgemnt so that it appears as if it were rendered by the local courts. This gives recourse to all mechanisms of enforcement.
Section 3 (6)(a) Court cant refuse solely on grounds of jur’n under rules of PrIL. Very dramatic but the Court Jur’n Proceedings transfer act plays down jur’nal criteria for determining when Canadian courts can take jur’n. Idea then of uniform enforcement act is to work in tandem with the jur’n and proceedings act. If you want to object of jur’n of canadian court you must go to initial proceeding in foreign court and make the challenge there. Wanna make argument that court lacks competence? You gotta go to first place where proceedings started.
Practical reality is that if you don’t object in first place, then you cant go to second place and complain. All of challenge to jur’n, to recognition and all proceedings have to take place in the initial jur’n.
Finality requirement: carried fwd in section 2(2) of Act. Allows enforcement of judgments nationally, and not only the ones relating to $$. Can extend to injunctions, eg.
Defenses in section 6
Finality means in contrext of CCQ extends to non enforcement in Qc if an appeal is pending. Time for appeal or other types of relief have not expired, then Qc court wont recognize or give effect. CML did not have such a philosphy for CML finality is met if judgment is final and conclusivein court in which it was rendered even if appeal is possible.
If you go to section 6(2)(c)(ii) you can see how enforcing court has to wait until appeal period in first jur’n has to wait.
Diff with Qc is that appeal has to exist only in theory, here it requires Df to say that not just is appeal is possible but that he intends to take it or is taking it. Longer dealy period the longer df unwilling to pay to make himself unable to pay by making assets disappear.
This preserves CML rule and adds provission that something real has to be going on and it’s not just theoretical.
Defenses: principle that procedural fairness must have existed (there in Parsons and Beals) continue. The Act treats idea of procedural fairness in section 6(3)(c) . Says nothwithstanding 6(2) the court shoould not make an order staying or limiting the enforcement of a registered Canadian judgment solely on the grounds that other Court acted in breach of principles of natural justice or fairness. Even if you can show 1st court was flagrant in that regard, it’s not a defense to enforcement in 2nd court. What’s recourse if court denied you natrual justice? Go to court of appeal.
There may well be less civilized systems of justice where ideas of fairness don’t correspond to Canadian norms, but assumptions is that we cant assume that everybody’s got Charter that protects guarantees of due process, etc, etc BUT in Canadian context you CAN make that assumption. That you will not be in position to claim breach of one tribunal in another. There may well be breach but remedy exists with a superior court.
So at first this rule, then, seems shocking. But it’s not bc assumption is that you can have remedy in original jur’n and then that brings in section 6(2) (ie an appeal) and that halts the process of recognition in second place.
Taxation: CML had general rule against both taxation and criminal and regulatory violations where penalties where fines. That exclusions has been carried forward to this legislation in Section 1(e).
Other exclusions are a bit odd in section 1 such as support obligations for child support. But there is other special legislation that provides for interprovincial enforcement of support orders for childern, etc. There are also intl conventions on family law, etc.
Under amendment act, this has been expanded to not just court judgments but also includes administrative tribunals in exercise of judicial function. (CCQ phrases court as Qc legitimate legal authority so this expansion has same effect as that)
One exception that’s still there is section 6(2)(c)(iv) that you can argue that enforcement should not be received bc judgment is contrary to public policy in enacting province (BC in example…ie the second place)
For Foreign country judgments the same assumptions are made bc foreign country courts are not bound by Morguard principles, not subject to a known jur’nal standards comparable to those of Canada. So tehre is a test: the foreign court must have jur’n in canadian sense. This is in section 4(a)
Sections 8 and 9 set out the conditions that must be bet. 8(a) and(e) relate to defendant, 8(a) and (b) to voluntary submission, 8 (f) speaks to real and substantial connection.
8(f) is expanded for non default judgments in section 9.
Both section 8 have to be read in light of section 10. It says that foreign judgment may not be enforced if there was no real and substnatial connection and it was clearly inappropriate for that state of origin to take jur’n. What does this mean? Df is relying on voluntary submission or pure defendant basis. So section 8 gives basis for jur’n but if that’s all you’re relying on, and court agrees that it was clearly inapropriate to take jur’n then the court will not enforce the judgment.
When would Can court find that only connection to forum is that Df had ordinary residence? When you argue forum non conveniens and say there is clearly more appropriate forum where case should be taken.
So this is saying that we in Can we don’t exercise our jur’n on cases on basis of df based jur’n except in cases of giving up jur’n, if there is a better forum so the same to apply to others who take jur’n when there was another better place to give jur’n.
Commentary goes to CCQ 3164. We recognize your jurn based on our rules which include domicile or residence in state subject to requirement for a connection bt dispute and the state.
Finality req’t approached here by definition in section 2: final decision made by court or adjudicative body. Same wording as Enforcement of Canadian judgements Act. So does it mean that all appeal possibilities have been refused or is when appeal is still possible. Answer is in section 4 (c)
Other defenses found in 4(e) and 4(f). Fraud and procedural fairness and natural justice. Consistent w/ conventioanl views. Exclusion of enforceability of foreign jud’ts based on taxation laws is carried forth in section 3(a)
Public policy in 4(g)
4(h) has big civil law influence. It relates to pending proceedings.
Beals and Saldanha’s influence is shown in fraud defense in 4(e). Fraud defense not part of civil law tradition. It is an english CML invention. Beals finally creates some rigour about scope of defense. English view was + continues to be that fraud will be a defense that can be reargued in new place. In Beals called intrinsic fraud w. is rephrased as fraud that went to the merits. Using fraud as defense goes against idea that enforcing court is not a court of appeal to the initial court. Beals establishes that fraud trumps and means you deserve a second hearing on merits only if fraud goes to merits where allegation didn’t get argued in first court bc based on new evidence that only emerged after judgment was rendered and could not reasonably have evidence in time. That can of fraud goes to mertis but CAN provide basis for defense bc it doesn’t offend principle that second court does not sit as court of appeal.
Element of fraud extrinsic to merits but goes to jur’n of court – would be covered by procedural fairness and public policy.
Biggest change by enacted of this act is found in section 6: ability of enforcing court to give effect of judgment but not necessarily to its full effect. “It shall limit award of damages” to comparable sum that would be awarded in Canadian court. This applies for punitive, non-compensatory damages so Andrews trilogy limits come in in section 6(2) which talks of excessive compensatory damages and allows for limiting of damages. Gives no guidance to court and legislature is thus inviting court to write some principle.
