Thinking Globally, Acting Locally: Recent Trends in the Recognition and Enforcement of Foreign Judgments in Canada

Abstract

The continuing evolution of the "real and substantial connection" test for the recognition and enforcement of foreign judgments remains a topic of immediate interest. Since the landmark decision in Morguard Investments Ltd. v. De Savoye, and more recently in Beals v. Saldanha, Canadian jurisprudence for the recognition and enforcement of foreign judgments has been dominated by judicial and legislative unilateralism: the establishment of a domestically imposed standard (the lex fori) striving towards national uniformity informed by private international law (or conflict of laws) principles. While the "real and substantial connection" test for jurisdiction simpliciter provides a flexible analytical framework for a Canadian domestic court in assuming or declining jurisdiction over a foreign defendant, it does not completely restrict jurisdictional challenges by a non-resident (foreign) defendant. The residual discretion afforded by the forum non conveniens doctrine, coupled with other forms of jurisdictional challenges, remains a robust procedural tool in a litigator's arsenal, while the boundaries of the recognized defences of fraud, natural justice and public policy continue to be tested. Part One reviews the Canadian unilateral approach to recognition and enforcement of foreign judgments, canvassing the application of "real and substantial connection" test through a review of recent court decisions, including the Supreme Court of Canada decision in Pro Swing Inc. v. Elta Golf Inc. on the recognition and enforceability of a non-monetary judgment. Part Two discusses bilateralism highlighted by a recent Ontario decision applying the Reciprocal Enforcement of Judgments (UK) Act. It will also identify current provincial reciprocal enforcement of judgments legislation involving reciprocating U.S. states and foreign nations. The Uniform Law Commission of Canada's uniform legislation recently implemented by the Saskatchewan Enforcement of Foreign Judgments Act will be highlighted. In Part Three, multilateralism through an overview of the Hague Choice of Court Convention will conclude with a recommendation for ratification and implementation by Canada.

Keywords: Foreign Judgments, Recognition, Enforcement, Private International Law, Hague Convention on Choice of Court Agreements, jurisdiction

JEL Classification: K33, K41