A perfect, though perhaps more boring, world would have one single legal system, where you could go to any court, get justice, and then seek to apply that court’s justice anywhere else in the world. Get judgment on a debt, and then enforce collection. Get judgment on child custody, and then collect the children. Get an order to stop someone from going something - like publishing libellous statements on the Internet - and then make that person stop.
But of course the world’s far from perfect. And infinitely complicated. So complicated that there are not only hundreds of legal systems, but potentially thousands of co-existing systems if all the world’s states and provinces within countries are accounted for. Even Canada has 13 different legal systems accounted for by each of the provinces and territories.
Sure, many of those systems are similar. But being similar isn’t enough if they aren’t identical for the purpose of judgment enforcement. Thus getting a court judgment from one system doesn’t mean you can waltz over to another system and automatically enforce it. You’re going to need a court order from the second system, giving its stamp of approval to the first order.
Showing up at a court counter with a stamp unfortunately isn’t the way it works. But enforcing a foreign judgment doesn’t need to be impossible.
A very useful new case in Ontario for 2019 evocatively called Dead End Survival, LLC v. Marhasin, 2019 ONSC 3453 sums it all up, as it was penned by Mr. Justice Perell, long a leading writer and teacher on Ontario civil procedure. He created what can be summed up as 5 principles for foreign judgment enforcement in Ontario.
Principle #1 - Foreign Debts will Be Enforced Absent Fraud, Natural Justice or Public Policy Violation - “At common law, a foreign judgment is, in effect, a debt that can be enforced by a cause of action to claim payment of the debt, and absent evidence of fraud or of a violation of natural justice or of public policy, the enforcing court is not interested in the substantive or procedural law of the foreign court that granted judgment.”
Principle #2 - Defendant May Not Relitigate Foreign Trial Issues - “In an action to enforce the foreign judgment, the Ontario court will not relitigate the underlying litigation that gave rise to the judgment, and if the foreign judgment is proven and is final, the Ontario court will enforce the foreign court’s judgment with a judgment of its own.”
“Given that the domestic court will not relitigate the substantive merits of the foreign judgment and although the creation of new defences is possible, there is only a small list of defences to the enforcement of a foreign judgment.”
Principle #3 - Foreign Non-Monetary Judgments Also Enforceable - “Foreign non-monetary judgments, including judgments for equitable relief, such as specific performance or an injunction are also enforceable. For a foreign non-monetary judgment to be enforceable, it must have been rendered by a court of competent jurisdiction and must be final, and it must be of a nature that the principle of comity requires the domestic court to enforce it. The domestic court retains the discretion that underlies equitable orders and may exercise that discretion in deciding whether to enforce a foreign equitable order.”
Principle #4 - Must be Attornment to Foreign Jurisdiction or Real & Substantial Connection to Dispute - “Subject to the defences, a Canadian court will enforce a foreign judgment if the defendant attorned to the jurisdiction of the foreign court or if the foreign jurisdiction had a ‘real and substantial connection’ to the dispute. The real and substantial connection is the overriding factor in the determination of the jurisdiction of the foreign court, and once it is determined that a foreign court properly assumed jurisdiction, a foreign judgment is prima facie enforceable.”
Principle #5 - Foreign Judgment Need Not Be From Most Real and Substantially Connected of All Possible Jurisdictions - “In deciding if the dispute had a real and substantial connection to the foreign jurisdiction, the domestic court must find that a significant connection existed between the plaintiff’s cause of action and the foreign jurisdiction. In determining whether there is a real and substantial connection, the domestic court should consider the connections between the subject matter of the action, the alleged wrongdoing, the place where the damages are suffered, as well as with the transactions of the parties and with the action.The connection must be real and substantial but not necessarily the most real and substantial connection of all possible jurisdictions that might have a connection to the dispute. The real and substantial connection test is not a rigid test, and must ultimately be guided by order and fairness, as opposed to a mechanical counting of contacts and connections.”
Simple, eh? Well, maybe not really, But at least you don’t have to start over from square one.
The increasingly clear message of Ontario courts is that they’re fed up with plaintiffs getting legitimate judgments from legitimate courts, only to have defendants in Ontario try to relitigate every last issue again in Ontario just to avoid enforcement, because the people, or money, or activities happen to be in Ontario and thus it’s only here that they’ve now decided they want to put up a huge fight that’s really already been lost elsewhere.
So no matter what kind of judgment or order you have, and no matter from which body it was issued, it may be worth attempting to enforce it in Ontario, and you may well avoid having to repeat the whole painful process of getting the judgment or order in the first place.
Gordon S. Campbell is an Ontario Barrister who enforces the judgments of other countries, states and provinces throughout Ontario, especially working with judgments from the United States of America and Quebec. He practiced transnational and international law with the Department of Justice Canada and served with Global Affairs Canada. Learn more at www.acmlawfirm.ca.