Grounds for Refusing to Recognize

Grounds for Refusing to Recognize

Under the common law, a judgment that is recognized may not necessarily be enforced.

A number of defenses may be raised to oppose the recognition and enforcement of a foreign judgment:

1. 
   Fraud: fraud may have been committed by the foreign court itself or by the successful party in that litigation. The English common law permits the local forum to go into the merits of the foreign judgment and deny its recognition and enforcement on grounds of fraud, even where no new evidence of fraud is produced
   
2. 
   Violation of natural justice: generally associated with a failure by the foreign court to give a party due notice of the proceedings and/or a fair opportunity to be heard (this was written before Beals)
   
3. 
   Violation of international public order
   
4. 
   Lack of international jurisdiction: see above for explanation.
   
5. 
   Foreign revenue, penal or other public law: no enforcement except for judgments of costs, exemplary damages and the civil damages portions combined civil/penal condemnations pronounced by foreign courts
   
6. 
   Other grounds (for the future)
   

• 
  Historic mistruths of foreign judgments. Frequently refused enforcement of foreign judgments merely because French courts would not have decided the case in the same way.
  
• 
  Munzer Case, 1964 – opening the way to a more selective approach founded upon five criteria: (a) possession of international jurisdiction by the foreign court; (b) conformity of the enforcing judgment to French international public order; (c) the regularity of the procedure followed by the foreign court, (d) the applicability of the law applies to the case on the merits and (e) the absence of evasion (fraude) of the properly applicable law and/or jurisdiction.
  
• 
  Today foreign judgments are given effect to by French judges.
  
• 
  Quebec - CCQ Art. 3155-3168, in particular 3155(1) to (6) and 3165 CCQ
  

application by CC to enforce a foreign judgment

applicants manufactures and distributed foods throughout the world

applicants sued in Texas alleging willful and unfair competition

judgment was rendered against them in Texas

court refused to recognize Texas judgment as both respondents were domiciled in Quebec, the connection between the Texas court and the respondents was tenuous, only a minimal portion of the products were distributed in Texas

3. International Conventions

• 
  most comprehensive and important international agreement ever concluded on the recognition and enforcement of foreign judgments.
  
• 
  Facilitates recognition/enforcement of civil and commercial judgments as between EU States by establishing: uniform rules on jurisdiction and recognition, simplified and expeditious procedure, strictly limited number of defenses to recognition/enforcement.
  
• 
  The basic principle is that the foreign judgment is recognized in other contracting states de plano “… without any special procedure being required.”
  

See Tetley, “Constitutional Law vs. Conflict of Laws” (Casebook at p. 247)

Two boating accidents on Ontario lakes in 1990 resulted in deaths and injuries to several boaters. Their dependents made claims under the Canada Shipping Act sect. 645 et seq. (fatal accidents) and under various Ontario statutes. The major legal issues were:

1) Jurisdiction: Was the jurisdiction of the Federal Court (Trial Division) over the fatal accident claims exclusive or concurrent with that of provincial superior courts?

2) Constitutional applicability to maritime negligence actions in Canada of provincial statutes generally and in particular of:

Ontario Family Law Act, sect. 61(2), permitting dependents of deceased and injured boaters (including their siblings) to claim for loss of guidance, care and companionship;

Ontario Trustee Act, sect. 38(1), permitting estates of the deceased boaters to claim for personal injuries of the deceased before their deaths;

Ontario Negligence Act’s provisions on contributory negligence.

3) Time-bars: Did the one-year time-bar of the Canada Shipping Act sect. 649 (re fatal accidents) or the two-year time-bar of sect. 572(1) (re collision actions) apply?

2) A four-part test was propounded to determine whether a provincial statute is constitutionally applicable to a maritime negligence action in Canada.

3) “Canadian maritime law” was reformed judicially so as to permit:

a) claims for loss of guidance, care and companionship by dependents of both deceased and injured boaters;

b) claims by the estates of deceased boaters for personal injuries sustained before their deaths.

So the applicability of the Family Law Act and Trustee Act did not have to be determined.

4) Siblings of the deceased were not permitted to claim as “dependents” under sect. 645 of the Canada Shipping Act, nor was it appropriate to reform that rule judicially or to apply the Ontario Family Law Act permitting siblings to claim as dependents.

5) Canadian maritime law includes proportionate fault, joint and several liability of tortfeasors and contribution between joint tortfeasors (confirming Bow Valley Husky Ltd. v. Saint John Shipbuilding Ltd. [1997] 3 S.C.R. 1210). So the applicability of the Ontario Negligence Act on contributory negligence did not have to be determined.

6) The two-year limitation of sect. 572(1) of the Canada Shipping Act applicable to collision actions was held applicable to the claims of the dependents, rather than the one-year time-bar of sect. 649 of the Act on fatal accident claims.
N.B.: The Marine Liability Act, S.C. 2001, c. 6 (Casebook at p. 255), in its Part 1 (“Personal Injuries and Fatalities”) has given statutory force to the principles of Canadian maritime law applicable to claims for maritime personal injury and death, as set forth in the Supreme Court of Canada’s decision in Ordon Estate v. Grail [1998] 3 S.C.R. 437, and has slightly extended these principles. Part 2 of the Marine Liability Act (“Apportionment of Liability”) has given statutory force to principles governing contributory negligence in one-ship torts, as announced by the Supreme Court in Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. [1997] 3 S.C.R. 1210. The following is a summary of Parts 1 and 2 of the Marine Liability Act (“MLA”):

1) Part 1 (“Personal Injuries and Fatalities”) applies to claims made and remedies sought under or by virtue of “Canadian maritime law”, as defined in the Federal Court Act, R.S.C. 1985, c. F-7, or any other law of Canada in relation to any matter coming within the class of navigation and shipping (MLA, sect. 5). Thus Part 1 applies to claims made under Canadian maritime law in respect of personal injury and/or death arising out of both commercial and recreational navigation.

2) Personal injury and death claims under Part 1 are not reserved to the “Admiralty Court” (defined by MLA, sect. 2 as the Federal Court of Canada), but may be brought “in a court of competent jurisdiction” (MLA, sect. 6(1) and (2)), thus perpetuating the concurrent jurisdiction of the Federal Court and the provincial superior courts over maritime personal injury and fatal accident litigation.

3) Damages may be claimed for the “loss of guidance, care and companionship” by dependants of both deceased and injured persons (MLA, sect. 6(1) and (3)) as well as by the executors or administrators (i.e. estates) of deceased persons, for the benefit of the dependants (MLA, sects. 6(2) and 10(1) and (2)).

4) The term “dependant” is defined so as to include, amongst others, brothers and sisters (i.e. siblings) of an injured or deceased person (MLA, sect. 4 (c)), thus granting them the right to claim damages they sustain as a result of that person’s maritime injury or death - a right which they did not have under Canadian maritime law when Ordon Estate v. Grail was decided.

5) Personal injury and death claims under Part 1 are subject to a two-year limitation period (MLA, sect. 14(1) and (2)). Damages for personal injury must be claimed within two years after the cause of action arose (MLA, sect. 14(1), referring to sect. 6(1)) and damages for death must be claimed within two years of the deceased’s death (sect. 14(2), referring to sect. 6(2)).

6)   Proportionate fault, joint and several liability of tortfeasors and contribution between joint tortfeasors are given statutory recognition in Canadian maritime law by Part 2 of the MLA (“Apportionment of Liability”), at sect. 17(1) and (2), except with respect to damages to ship and cargo, which continue to be subject to joint, rather than joint and several, liability (MLA, sect. 17(3)), in accordance with the Collision Convention 1910.

Comparison of the Rome Convention (1980), The Conflict of Law Provisions of the Quebec Civil Code (1991), The Private International Law (Miscellaneous Provisions) Act 1995

 I. Quebec Civil Code 1991 (in force Jan. 1, 1994), articles 3076 to 3168 c.c.q. (Casebook at p. 1)

 II. Rome Convention 1980 (Casebook at p. 16)

 III. The Private International Law (Miscellaneous Provisions) Act 1995 (Casebook at p. 43)