No. 1]
Recognition and Enforcement of Foreign Judgments
in Personam and in Rem in the Common Law
Provinces of Canada
J.-G. Castel *
Introduction
Although it is hardly necessary to stress the advantages to
international relations and international trade which may result
from universal recognition and enforcement of foreign judgments,
it appears that the increasing volume of international and inter-
provincial trade and business has not been followed by a com-
parable development of the facilities granted to creditors to recov-
er on their claims. Each country has a tendency to protect itself
against the intrusion of foreign judgments, to the prejudice of
creditors in whose favour the judgments lie. The principle of terri-
torial sovereignty is said to prevent foreign judgments from having
any direct operation as such in any of the Canadian provinces. This
attitude is principally due to a lack of confidence in bther legal
systems. It may be difficult for the enforcing court to ascertain
the independence and legal ability of the foreign judge, and to
assess the reliability of the foreign legal system. This difficulty is
reinforced where the countries involved adhere to fundamentally
different legal systems and thus may have different concepts of
public policy and due process. To admit the principle of universal
recognition and enforcement of foreign judgments would result in
recognizing in a foreign judge a power superior in many instances
to that possessed by the local legislature. For these reasons ade-
quate safeguards must be provided. On the other hand a foreign
judgment is a fact which cannot be ignored. This is why Canadian
courts have had to recognize and enforce foreign judgments pro-
vided they meet certain conditions.
Diversity of laws is a distinguishing factor in international
commerce. Businessmen are not generally concerned with the tech-
nicalities of the law. Their main problem is to protect themselves
against the risk of insolvency of their debtors or any other im-
pediment which may be placed in the way of the enforcement of
their claims. From their point of view what is required is that the
enforcement of judgments whether rendered locally or abroad be
* Professor, Osgoode Hall Law School, York University, Toronto. Editor,
Canadian Bar Review.
McGILL LAW JOURNAL
[Vol. 17
prompt, certain and effective. Security of transactions appears as an
underlying policy of major importance in this field of conflict of
laws. Without this security commercial intercourse would be greatly
lessened. Apart from these commercial relations, facility in the
recognition and enforcement of foreign judgments has also become
a social question due to the rapidity of transportation and the tre-
mendous increase in human migrations.
The policy question is how easy and how fast a foreign judgment
should be recognized and enforced without endangering local in-
terests. Another difficulty consists in finding a way to coordinate
the foreign and local legal systems as all civilized nations have the
duty to assist one another in the administration of civil justice.
From a theoretical point of view an equilibrium must be found
between the principles of sovereignty and universality.
Scope of the Article
This article deals with the recognition and enforcement in Canada
of foreign judgments in personam and in rem at common law and
by statute. It also includes a section on the recognition and en-
forcement of foreign arbitration awards. The recognition and en-
forcement in Canada of foreign decrees of divorce or nullity of
marriage, foreign guardianship or custody orders, foreign adoption
orders, foreign judgments relating to the administration of estates
or to succession, foreign adjudications in bankruptcy or foreign
orders for the winding-up of companies are not discussed here.
Definition of foreign judgments
First it is necessary to determine the nature of the foreign
document sought to be used in the courts of the forum. The test
is not by what name the foreign document is called where it origi-
nated, but whether it appears to the court, which is called upon
to give effect to it, to be in its essential character and effect a
foreign judgment. Although, in principle, the enforcing court will
apply its own rules and concepts in determining this point, it will
also inquire into the domestic law of the foreign country involved.
The determination of what is a judgment will be made by reference
to the nature of the foreign suit rather than the technical name
attached to it.
A foreign judgment may be defined as the final decision, decree
or sentence of a judicial body or tribunal regularly established
and exercising the jurisdiction conferred upon it by the law of the
country or province of its creation, which determines the respec-
tive rights and claims of the parties to a suit therein litigated.’
No. 11
RECOGNITION AND ENFORCEMENT
All judgments rendered outside a province or territory are foreign
judgments,2 as each province or territory is a foreign country or
law district.3
In Stolp & Co. v. H. W. Browne & Co.4 the court, quoting Piggott
on Foreign Judgments and Jurisdiction 5 said:
The definition of a ‘foreign judgment’ implies that the Court which has
pronounced it is a judicial tribunal established by the Government of
the country in which it exercises its jurisdiction, or by some other Govern-
ment with its authority. The tribunal must be a Court of Law within
the ordinary meaning of that term… The decision of a dispute by any
other person or body even with the consent of the parties, does not
amount to a judgment; the remedy in case of failure to carry out the
decision would probably lie on the contract to refer the dispute and
accept the decision. Thus, an award of an arbitrator abroad does not
come within the definition of a foreign judgment until it is made an
order of Court; it is then merged in that order, which is in effect the
judgment of the Court in the matter.
In general Canadian common law courts will assume that a
foreign judgment or decree was correctly rendered until the con-
trary is shown.6 If a plaintiff proves the existence of a foreign
judgment in his favour the onus shifts to the defendant to im-
peach it
L Principles of Recognition
It is a well-known principle that the sovereignty of a state stops
at its borders.8 As a corollary to this basic proposition, it is said
1 It must be rendered on the merits. It does not matter whether the decision
was rendered by a court of law or equity: Gauthier v. Routh (1843), 6 U.C.Q.B.
O.S. 602, at p. 605. Frederick A. Jones Inc. v. Toronto General Insurance Co.,
[1933] O.R. 428, [1933] 2 D.L.R. 660, (1933), 42 O.W.N. 278.
2 McFarlane v. Derbishire (1851), 8 U.C.Q.B. 12. In re Hamer, ex parte
McGuinty & Co. (1921), 2 C.B.R. 137, 63 D.L.R. 241 (Sask).
3 Vezina v. Will H. Newsome Co. (1907), 14 O.L.R. 658, at p. 664.
4 (1930), 66 O.L.R. 73, [1930] 4 D.L.R. 703, discussed infra, section V.
G (3rd. ed., 1908), pp. 95-96.
6 Gauthier v. Routh (1843), 6 U.C.Q.B. (O.S.) 602 (CA.); Meagher v. Aetna
Inc. Co. (1873), 20 Gr. 354; McPherson v. McMillan (1846), 3 U.C.Q.B. 34 (CA.);
Shearer & Co. v. McLean (1903), 36 N.B.R. 284 (CA.); Bonn v. National Trust
Co. (1930), 65 O.L.R. 633, [1930] 4 D.L.R. 820 (C.A.).
7Thibodeau Machinery Co. v. Crown Iron Railing Co. (1964), 46 W.W.R. 246
(Sask.); Smith v. Smith, [1923] 2 W.W.R. 389, at p. 392, 17 Sask. L.R. 203;
Marshall v. Houghton, [1922] 3 W.W.R. 65, at pp. 70-71, aff’d [1923] 2 W.W.R.
553, 33 Man. R. 166, and see section V, infra.
8In Assiniboia Land Co. v. Acres (1916), 10 O.W.N. 328, 28 D.L.R. 364, the
Ontario Court refused to recognize a Saskatchewan judgment based on a
statutory obligation that had no extraterritorial effect.
McGILL LAW JOURNAL
[Vol. 17
that no sovereign state can allow officers of a foreign state to
carry out upon its own territory the decisions of the courts of that
foreign state, because such action would violate the principle of
sovereignty. The inability of the nations of the world to ascribe
the same value or meaning to justice makes it unwise to recognize
the validity of any foreign judgment without some supervision by
the domestic courts. The citizens or residents of the country where
the judgment is sought to be enforced should not be left without
protection in respect to arbitrary measures which might be taken
against them in foreign countries. Thus, it is generally agreed that
no judgment of a court of one country can be executed proprio
vigore in another country.
On the other hand, the right to maintain an action upon a
foreign judgment or the fact that it is admitted to execution or
declared executory after a special proceeding for that purpose, is
also almost universally recognized, although widely differing meth-
ods are used to reach a satisfactory solution. To reconcile these
two somewhat conflicting positions it is said that a foreign judg-
ment is a specific command by a foreign sovereign, effective in the
first instance only in the foreign jurisdiction. In the courts of the
forum before which the creditor brings this judgment, it will
receive such recognition and force as the law of the forum per-
mits. The courts of the forum may recognize and enforce it, but
in doing so they are not directly enforcing the foreign law or
making a choice between that law and their own, as they would in
a typical choice of law situation. A foreign judgment has in itself
no right to recognition and enforcement, and whether effect must
be given to it can be decided only under the law of the forum which
enumerates all the conditions which must be met for that purpose.
The forum will always determine the extent to which a foreign
judgment will be recognized and enforced.
The most important problem is to determine the measure of
respect which will be granted to a foreign judgment in Canadian
courts. The practice which is now followed in Canada is the product
of a long historical evolution which began in England.
Until the end of the seventeenth century, problems of conflict
of laws were almost non-existent in England. Every court applied
its own law exclusively and the sole issue was the competence of
the court to adjudicate the case. Problems of conflict of jurisdic-
tions were most important. Although as early as 1607 it became
necessary for the English courts to consider the problem of giving
effect to judgments of foreign countries,9
it was not until the
9 Wier’s case (1607), 1 Roll Abr. 530.
No. 1]
RECOGNITION AND ENFORCEMENT
eighteenth century that this branch of conflict of laws began to
develop. This was due partly to the growth of the colonies and
partly to the growth of England’s foreign trade.
Basically foreign judgments have been viewed in terms of the
independent territorial jurisdiction of courts, a fundamental con-
cept in Anglo-Canadian law.
Huber was the first to have a great influence upon the develop-
ment of conflict of laws in England. For him all laws are territorial
and have no force and effect proprio vigore beyond the limits of
the enacting state, but bind all persons found within the territory;
thus, the enforcement of a judgment outside the territory of the
court which rendered it must be based on some other concept
than owing its effectiveness to the authority inherent in the judicial
office. Huber was followed by Paul Voet and John Voet who carried
to its logical conclusion the doctrine of d’Argentr6, a jurist from
Britanny, that all customs are territorial. Huber and Paul Voet who
did not admit exceptions to the rule of territoriality as d’Argentr6,
Froland,10 and Boullenois 11 had for status and capacity, did not
think that foreign judgments could have extraterritorial effect de
facto. If any effect was to be given to them, it would be only by
way of comity. By comity they meant that the recognition of
foreign judgments was a mere concession that a state allows to
the acts of another state on grounds of convenience and utility
and not as the result of an obligation. The enforcing courts are
free to decide on the nature of comity. This is a judicial comity,
because the discretion in applying the principle rests upon the
judge and not the government.
Vattel also affirmed that in consequence of a right of jurisdic-
tion of every sovereign to administer justice in all places within
his own territory, which must be respected by other nations, the
decisions made by the judge of that place within the extent of
his authority, ought to be respected and to take effect in foreign
countries.13 A distinction was made between rules of law having
etc. (1766).
10 M~moire concernant la nature et la qualit6 des statuts, etc. (1729).
“Trait6 de la personnalit6 et de la r~alit6 des lois, coutumes ou statuts,
12 Huber Vol. 2, lib. 1, tit. 3 de conflictu legum diversarum in diversis
imperiis in Praelectionum juris civilis (1700); J. Voet, De statutis in Corn-
mentarius ad Pandectas (1704), s. 4, n. 14; P. Voet, De Statutis eorumque
concursu, etc. (1661).
13 Vattel, Law of Nations (1758), Vol. 2, c. 7, s. 84; Story, Commentaries on
the Conflict of Laws (8th ed., 1883), s. 585.
McGILL LAW JOURNAL
[Vol. 17
effect ex proprio vigore and those admitted only ex comitatae, and
it was held that a foreign judgment ought to be recognized not
as a matter of legal duty but as a matter of comity.
These views entered England in the 18th century. From there
they reached Canada and by the middle of the nineteenth century
became the basis of the Anglo-Canadian rules of conflict of laws.
1) Comity
The earliest decisions in England and some rather more recent
Canadian ones 14 give support to the view that the recognition and
enforcement of foreign judgments is a matter of comity. For in-
stance in the Wier’s case’ 6r it was held that English courts are
bound to give effect to foreign judgments under the rules of the
law of nations or of international comity, while in the Cotting-
ton’s’0 case Lord Nottingham stated that it is against the law of
nations to deny credit to the judgments and sentences of foreign
countries. “For what right hath one kingdom to reverse the judg-
ment of another? … And what confusion would follow in Christen-
dom, if they should serve us so abroad, and give no credit to out
sentences?”
In Hilton v. Guyot, an American case, Mr. Justice Gray said:
No law has any effect, of its own force, beyond the limits of the sovereignty
from which its authority is derived. The extent of which the law of one
nation… shall be allowed to operate within the dominion of another
nation, depends upon… the “comity of nations”… “Comity” in the legal
sense, is neither a matter of absolute obligation, on the one hand, nor
of mere courtesy and good will, upon the other. But it is the recognition
which one nation allows within its territory to the legislative, executive
or judicial acts of another nation, having due regard both to international
duty and convenience and to the rights of its own citizens or other
persons who are under the protection of its lawsj 7
14 Barned’s Banking Co. Ltd. v. Reynolds (1875), 36 U.C.Q.B. 256, at p. 273;
Hutton v. Dent (1922), 52 O.L.R. 378, at p. 380; aff’d 53 O.L.R. 105, 70 D.L.R.
582; aff’d [1923] S.C.R. 716, [1924] 1 D.L.R. 401; Manning v. Thompson (1867),
17 U.C.C.P. 606 (C.A.), at p. 611; Richarson v. Allen (1916), 10 W.W.R. 720, 11
Alta L.R. 245, 28 D.L.R. 134, affirming 31 W.L.R. 437, 24 D.L.R. 883 (CA.).
15 Supra.
10 (1678), 2 Swans. 326 n.
17Hilton v. Guyot (1895), 159 U.S. 113, at p. 163; in Canada in general see
Stevens v. Fisk (1884), Cameron Supreme Court Cases 392, at pp. 424, 431;
Canadian Pacific Railway Co. v. The Great Western Telegraph Co. (1889), 17
S.C.R. 151; The doctrine of comity was criticized by Rivard, J. in Monette v.
Larivire (1926), 40 B.R. 350, at p. 357.
No. 1]
RECOGNITION AND ENFORCEMENT
For Story the term “comity” is the most appropriate phrase to
express the true foundation and extent of the obligation of the laws
of one nation within the territory of another.”8
Comity has been considered as part of the law of nations. But
is there a law of nations with respect to the enforcement of foreign
judgments? It is indeed interesting to note that the followers of
the doctrine of comity have used the theory of voluntary interna-
tional law as the ground on which the recognition and enforcement
of foreign judgments is founded. Actually, it does not appear that
there exists any true international obligation concerning the rec-
ognition and enforcement of foreign judgments.
The question of the effect to be given to foreign judgments is
purely a matter of domestic law and in this case comity appears
to be not a rule of international law but a rule of the domestic
law of the forum. Rules of conflict of laws are not derived from
international law but from municipal law. Thus it is impossible
to bridge conflict of laws and public international law by the use
of comity. Here the comity doctrine erroneously uses a pretended
tacit international agreement as the basis of the recognition of
foreign judgments.
Dicey comments vigorously upon the doctrine of comity as
regards the application of foreign law and his remarks are equally
applicable to the recognition and enforcement of foreign judgments.
He says: 19
If the assertion that the recognition or enforcement of foreign law depends
upon comity, means only that the law of no country can have effect as law
beyond the territory of the sovereign by whom it was imposed, unless
by permission of the state where it was allowed to operate, the statement
expresses, though obscurely a real and important fact. If on the other
hand, the assertion that the recognition or enforcement of foreign laws
depends upon comity is meant to imply that, to take a concrete case,
when English judges apply French law, they do so out of courtesy to the
French Republic, then the term “comity” is used to cover a view, which
if really held by any serious thinker, affords a singular specimen of
confusion of thought produced by laxity of language. The application of
foreign law is not a matter of caprice or option: it does not arise from
the desire of the sovereign of England or of any other sovereign to show
courtesy to other states. It flows from the impossibility of otherwise
determining whole classes of cases without gross inconvenience and
injustice to litigants, whether natives or foreigners.
The English cases recognizing foreign judgments as a matter
of comity did not necessarily give them the same force as domestic
Is Story, op. cit., ss. 33-38.
19Dicey, The Conflict of Laws (5th ed., 1932), pp. 10-11. See infra section
II (4).
McGILL LAW JOURNAL
[Vol. 17
judgments 20 Comity as applied to foreign judgments expresses a
rule of local public policy operating on the international level. It
is not a rule of international law. This policy has three aspects:
1) where the forum refuses to give any effect to a foreign judg-
ment that is against the interests of local residents or domiciliaries;
and 2) where the forum recognizes and enforces a foreign judgment
because it is in the interest of these people to do so; 3) the interest
of the forum in securing uniformity of decision. Actually inter-
national relations and courtesy have nothing to do with comity.
The old theory of judicial comity has been superseded. The judge
has become the keeper of the nation’s conscience, as well as the
protector of its interests, and these obligations set a limit to his
actions. Comity thus becomes a sociological explanation for conflict
of laws rules. If comity is defined as tantamount to public policy,
the basic vagueness of the theory of comity becomes an advantage,
as public policy is both a negative and a positive factor in the
development of Anglo-Canadian law. Comity may then be inter-
preted and enforced by courts as being fixed by general usage,
morality, economic or social considerations, or political or legis-
lative declarations, sometimes applying only with respect to the
relations with certain foreign countries.
The traditional doctrine of comity has been criticized for its un-
certainty, vagueness, and difficulty of application. It has been urged
that the word “comity” has no proper place in a discussion of the
conflict of laws and that any comity involved is that of the state.
Undoubtedly the doctrine of comity presents an internal inconsist-
ency, because on the one hand it denies the intrinsic force of
foreign judgments from the point of view of international law, and
on the other hand it endeavours to provide an international basis
for their recognition and enforcement. Today the doctrine of comity
has lost its vogue, in part because of the tenuous and arbitrary
basis upon which it seems to rest the rights of those claiming under
foreign judgments, and its inability to explain the recognized ex-
ceptions to actions to enforce such claims; and, in part, because
it has not proved congenial to the positivistic tendencies of Anglo-
Canadian law which envisage the enforcement of foreign judgments
from the point of view of the enforcing courts rather than of inter-
national law.21
20 Today comity is no longer a basis for the recognition of foreign judgments
or decrees in England. See Indyka v. Indyka, [1967] 3 W.L.R. 510 (H.L.) per
Lord Reid, at p. 518, quoting Blackburn, J. in Schibsby v. Westenholz (1870),
L.R. 6 Q.B. 155, at p. 159.
21 Yntema, The Enforcement of Foreign Judgments in Anglo-American Law
(1935), 33 Mich. L. Rev. 1129, at p. 1146.
No. 1]
RECOGNITION AND ENFORCEMENT
2) Reciprocity
The idea of resorting to the doctrine of reciprocity in recognizing
foreign judgments as a logical consequence of the doctrine of comity
also originated at an early period.
Text writers in the field of conflict of laws thought that reci-
procity could advance the interests of non-resident nationals. They
maintained that international law required equality of treatment.
Story 22 and Wheaton 23 believed that the application of foreign
law was based on reciprocal wants, so that the nationals of the
respective states involved would have their interests protected. Sa-
vigny 24 also was of the opinion that reciprocity would tend to
unify conflict of laws rules. The idea which underlies reciprocity
is to appeal to the self-interest of the foreign legislatures or courts
in order to induce them to change a policy which is considered
undesirable.
In England the doctrine of comity based on reciprocity in rec-
ognition has not been resorted to at common law as a theoretical
basis for the recognition of foreign judgments. Dicey 2 5 is categorical
when he says that, “The question of giving effect to a foreign judg-
ment is not at common law in any way dependent on reciprocity
of treatment”. The weight of decisions supports his opinion. Thus,
in Russell v. Smith 26 it was held that the enforceability of a foreign
money judgment follows from the legal character of the adjudicated
obligation as a debt and is no longer subject to investigation on
the merits. It is, therefore, irrelevant whether or not the foreign
country in which the judgment was rendered grants reciprocal
treatment to English judgments. The recognition and enforcement
of a foreign judgment takes place ex debito justiciae and reci-
procity has nothing to do with it. 7
22 Op. cit., p. 24.
23 Elements of International Law (1836), p. 112.
24 8 System des heutigen r6emischen rechts (1849), p. 28, note f.
25 Op. cit. (6th ed. 1949), Rule 85, comment p. 403; also see (1896), 12 L.Q.
Rev. 302; H.E. Read, Recognition and Enforcement of Foreign Judgments in
the Common Law Unity of the British Commonwealth (1934), pp. 52-53, 125
et seq. See also Kennedy, Recognition of Judgments in Personam: The Meaning
of Reciprocity Archambault v. Solloway (1957), 35 Can. Bar Rev. 123.
26 (1842), 9 M. & W. 810, at p. 819; in Canada see Kennedy, Recognition of
Judgments in personam: The Meaning of Reciprocity (1957), 35 Can. Bar
Rev. 123.
27 See also Williams v. Jones (1845), 13 M. & W. 628, at p. 633.
McGILL LAW JOURNAL
[Vol. 17
Reciprocity is only to be found as a prerequisite for direct
execution by registration.28
3) Legal obligation
The needs of trade and the fact that a judgment has often been
considered as a law governing private rights analogous to a foreign
contract led the English courts to find a new and broader explana-
tion for the recognition and enforcement of foreign judgments. As
early as 1835 Lord Brougham in Warrender v. Warrender 2 said that
the courts of England can hardly be said to act from courtesy ex
comitatae but ex debito justiciae. This doctrine was first fully
stated by Lord Abinger and Baron Parke in 1842 in the case of
Russell v. Smith 30 and was reaffirmed in Williams v. Jones.31 Baron
Parke maintained that when a competent court has adjudicated
a certain sum to be due from one person to another, a legal obli-
gation arises to pay that sum, and an action of debt to enforce
the judgment may be maintained. It is in this way, he says, that
the judgment of a foreign or colonial court may be supported and
enforced.
Subject to compliance with certain requirements, the decision
of a foreign court imposes upon the parties against whom the
decision is given a legal duty to obey it. To this legal duty cor-
responds the right of the person in whose favour the decision
has been given that the foreign judgment should be obeyed. This
reasoning does not explain why the foreign judgment results in a
legal obligation, nor why it is enforced by the forum. It is also
difficult to reconcile the legal obligation doctrine with the rule
denying the possibility of a merger of the cause of action in a
foreign judgment. Support for this doctrine is also found in Godard
v. Gray 32 and Schibsby v. Westenholz 33 in which Judge Blackburn
said,
28See next section. In England jurisdictional reciprocity was recognized in
Travers v. Holley, [1953] P. 246 in foreign divorce cases but rejected by the
House of Lords in Indyka v. Indyka, [1967] 3 W.L.R. 510, especially by Lord
Reid, at pp. 519-520.
29 (1835), 2 Cl. & Fin. 488.
30 (1842), 9 M. & W. 810, at p. 818 “Foreign judgments are enforced in these
courts because the parties are bound to satisfy them”.
31 (1845), 13 M. & W. 629, at p. 633.
32 (1870), L.R. 6 Q.B. 139, at pp. 148-150.
33 (1870), L.R. 6 Q.B. 155, at p. 159.
No. 1]
RECOGNITION AND ENFORCEMENT
We think that… the true principle on which the judgments of foreign
tribunals are enforced in England is … that the judgment of a court
of competent jurisdiction over the defendant imposes a duty or obligation
on the defendant to pay the sum for which judgment is given, which the
courts in this country are bound to enforce, and consequently, that any-
thing which negates that duty, or forms a legal excuse for not performing
it, is a defense to the action.
If the foreign court had jurisdiction to render the judgment
according to English rules of conflict of laws, the judgment, if
final, is conclusive in England and can only be impeached for a
limited number of reasons. The doctrine that a valid foreign judg-
ment imposes a duty or legal obligation on the defendant which
the courts are bound to enforce has been recognized in Canada.
This obligation has also been held to arise upon an implied con-
tract.3
The doctrine of legal obligation, which in England disposed of
the doctrine of comity, shows that a foreign judgment may be
recognized and enforced, either as a judgment essentially homo-
geneous with a corresponding domestic judgment constituting a
debt or implied contract, or as a source of legal obligation which
does not require further justification. 0 It also indicates the charac-
ter of the procedural method for its enforcement and has the merit
of recognizing that the res litigiosa before the enforcing court is
typically not an international casus belli but a private dispute.
The background of this theory is to be found in Roman law, in
the conception of the contractual or quasi-contractual transaction
by which the parties are bound by their consent. Thus, the prin-
cipal effect of this conception is that to enforce a foreign judgment,
an action must be commenced de novo in the ordinary course of
events.3 7
34 Kingsmill and Davis v. Warrender and Wheeler (1852), 13 U.C.Q.B. 18,
at p. 68; Fowler v. Vail (1877), 27 U.C.C.P. 417, at p. 425, varied on appeal
4 O.A.R. 267, at p. 270; Whitla v. McCuaig (1891), 7 Man. R. 454, at p. 455;
Barned’s Banking Co. Ltd. v. Reynolds (1875), 36 U.C.Q.B. 256 (C.A.), at pp.
279-280; Maguire v. Maguire (1921), 50 O.L.R. 100, at p. 103; Marshall v. Hough-
ton (1923), 33 Man. R. 166, at p. 179; Livesly v. Horst Co., [1924] S.C.R. 605,
at p. 610, per Duff I.; Re Kerr v. Smith (1894), 24 O.R. 473.
35 Jacobs v. Beaver (1908), 17 O.L.R. 496, at p. 502: “A judgment, whether
native or foreign, creates a debt between the parties”; in Martel v. Dubord
(1885), 3 Man. R. 598: “A foreign judgment for a certain sum of money
constitutes a simple contract debt for that amount from the judgment debtor
to the judgment creditor, upon which an action of debt lies.”
36Schibsby v. Westenholz supports this view (1870), L.R. 6 Q.B. 155.
37 Yntema, op. cit., at p. 1147.
McGILL LAW JOURNAL
[Vol. 17
4) Comity and legal obligation
Piggott criticized the doctrine of legal obligation. 8 He pointed
out that the obligation has no legal basis because the sanction has
been left in the foreign country, hence, a judgment debtor coming
to England cannot be considered as a legal debtor there; he can
only be a legal debtor of and in a foreign state. The inevitable
result is that the obligation is destroyed by avoiding the sanction
to which the person obliged has rendered himself liable 9 Piggott
proposed a new system called the doctrine of comity and obliga-
tion which combines the two preceding doctrines. He said: 40
States lend their aid mutually to enforce each other’s judgments. There
is a legal obligation existing against the debtor in the state where the judg-
ment has been pronounced; the obligation has been disobeyed. By reason
of the debtor’s absence from the jurisdiction of its courts and there being
no property on which execution can issue, the state is unable to enforce
the sanction. By virtue of the comity of nations, a foreign state, to which
the debtor has gone, will clothe the obligation deprived of its correlative
sanction, with another sanction auxiliary to it, and by so doing will endue
it with the power resembling that which it has lost.
And added: 41
The result is, that not only is an obligation created, the sanction correl-
ative to which is resident in the Sovereign Authority of the State whose
courts have pronounced the judgment, and which may be enforced there
at the discretion and instance of the judgment creditor; but there also
comes into being in every other state a bare obligation –
resembling
somewhat the nudum pactum of the Roman Law – which, when the
judgment debtor enters any foreign state, is clothed with an auxiliary
sanction, enforceable by the foreign judgment creditor; and dependent
upon international comity.
A foreign judgment will be enforced, first, under the influence
of the comity of nations; secondly, because of the obligation created,
and this, jus for jus and not lex for lex. In other words, a power
resides in every member of the community of states to enforce the
judgment of other states by means of an auxiliary sanction which
has been created by the comity of nations.4 2
5) Vested rights
For Dr. Read,43 a foreign judgment is recognized because it
establishes the existence of a foreign judicially-created substantive
38 Piggott, Foreign Judgments (2nd ed., 1908), pp. 7-10.
39 Ibid., p. 11.
40 Ibid., p. 15.
41 Ibid., p. 18.
42 For a criticism of Piggott’s view see Read, op. cit., p. 62.
43 Op. Cit., p. 121.
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RECOGNITION AND ENFORCEMENT
fight. A right which has been duly acquired under the law of any
civilized country by virtue of the judgment is to be recognized and
enforced by the forum. He states that the true basis of the rec-
ognition of a foreign judgment, lies in the fact that:
… a vested right has been created through the judicial process by the
law of a foreign law district. This basis not only supports and explains
the finality requirement and conclusiveness rule; it is implicit in the
doctrine of territoriality of law. This however, is not to say that the Anglo-
Dominion common law of foreign judgments gives effect to the so-called
vested rights doctrine of conflict of laws to the extent of recognizing
every right created by a foreign-territorial law through the judicial process.
To be recognized as an operative fact the right must have been created
by the law of a district which had judicial jurisdiction in the international
sense and have satisfied other requirements …
In other words, a vested right has been created through the
judicial process by the law of a foreign district.” It is not the
judgment but the right vested under that judgment which is rec-
ognized and enforced. This doctrine which is closely related to
that of legal obligation seems to beg the question by presupposing
a right as vested, while the actual problem is whether it is vested.
It does not inform us how and under what limitations foreign
claims are to be recognized and enforced as vested rights. As Pro-
fessor Yntema wrote: 45
The truth is that the vested right doctrine is a somewhat diffused or
diluted version of the internationalist position. It supposes the existence
of a supra national body of law by virtue of which not the laws of each
state but rights and other relations created by such laws are effective
in other states. If foreign rights are to be regarded as effective in the
forum why not the law which creates such rights?
In general this approach to the problem has been severely
criticized, especially in the United States, as not expressing a
fundamental principle for the recognition and enforcement of foreign
law or foreign judgments. 46 As pointed out by Professor Morris 47
the English doctrine of obligation has nothing to do with Dicey’s
and Beale’s theory of vested rights 48 because the right which the
foreign judgment creditor seeks to enforce in England is a right
created by English law and not by foreign law. To give a valid
‘4 Ibid., pp. 63 and 126. See also Borm.-Reid, Recognition and Enforcement
of Foreign Judgments (1954), 3 Int. and Comp. L.Q. 49, at p. 55.
45 (1939-1940), 49 Yale LJ. 1134, at p. 1139.
40 See for instance Cook, The Logical and Legal Bases of the Conflict of
Laws (1942), chs I-III.
47Dicey & Morris, op. cit. (8th ed., 1967), p. 968.
48 See Castel, Conflict of Laws (2nd ed., 1968), ch. 3.
McGILL LAW JOURNAL
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foreign judgment the foreign court must have had jurisdiction
according to English conflicts rules. In other words the judgment
must be valid according to the law of the enforcing court before
any effect can be given to it.
In enforcing a foreign judgment the forum only applies its own
law to the action. It will render a domestic judgment, although
this judgment will be identical with that which was based on the
law of the foreign country with which all the elements of the
judgment are connected. The foreign judgment is incorporated into
the new judgment rendered by the forum. Thus the forum does
not enforce a foreign vested right, but creates a new right.
The common law technique of enforcing foreign judgments lends
itself to this approach. The foreign judgment is considered only
as a fact. By bringing an action upon that foreign fact, the plaintiff
requests the court of the forum to create a right, to render a local
judgment. If respect is paid to the foreign law, it is only by reason
of economic, social or practical expediency, but not by reason of
the compulsion exercised by the foreign judgment or the right
vested under it. The recognition and enforcement of foreign judg-
ments would then appear to be a question of policy of the forum,
and in this way it is consistent with the old principle of comity.
As the law of a state may direct its courts to refuse the creation
of certain rights, where such rights would be against its public
policy, similarly it may freely formulate the requirements for the
recognition and enforcement of foreign judgments.
6) Res judicata
Professor Reese 49 has suggested that one must look beyond the
usual reasoning of the courts in order to explain the basis upon
which they enforce foreign judgments. A rigid scrutiny will show
that res judicata is the hidden principle upon which foreign judg-
ments are enforced in common law countries. Res judicata requires
that there be an end to litigation, that those who have contested
an issue, here or abroad, be bound by the result of the trial, and
that matters once tried be considered forever settled between the
parties. This fundamental principle of the common law must, no
doubt, have influenced the minds of the judges when dealing with
foreign judgments. It certainly affords a reasonable explanation
for the basis upon which Canadian common law courts enforce
49The Status in this Country of Judgments Rendered Abroad (1950), 50 Col.
L. Rev. 783, at p. 784.
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RECOGNITION AND ENFORCEMENT
foreign judgments although there has not been any Canadian
authority basing the recognition of a foreign judgment on res
judicata alone. It also explains the modem view that a foreign
judgment is conclusive on the merits.50 However, as the previous
theories, it fails to account for the weight given by the courts to
countervailing factors such as public policy and for the fact that
a foreign judgment does not merge the original cause of action. 51
In general, if in practice a foreign judgment is recognized and
enforced in the common law provinces, possible explanations offi-
cially lie in one of two existing lines of thought, each independent
of the other, although both may be, and on occasion are, used
as the raison d’6tre for the treatment of foreign judgments by the
courts of Canada. One line of thought bases recognition and en-
forcement on the fact that the foreign judgment is a formal
pronouncement of the court of a foreign sovereign which requires
recognition under the principles of international law or comity.
The other argues that the foreign judgment is actually a settlement
of a peculiar nature which deals with the rights of private parties,
and because of the unique nature of this settlement the parties
should be bound thereby as they would be bound by their own
valid contracts. The latter view would appear to be more consistent
with the nature of conflict of laws. These explanations, however, are
mere devices used to cover a wider application of the more general
principle of res judicata, which in fact is applied with equal force
to both foreign and domestic judgments.
The only uncertainty which exists lies in the technical conse-
quences of the application of the res judicata rule to foreign judg-
ments as contrasted with domestic judgments. The difficulty
experienced here in finding a rationale for the fact that the forum
enforces foreign judgments, is only due to the unconvincing expla-
nations as to the basis on which the forum, when faced with conflict
of laws problems in general, resorts to the foreign law in derogation
from the principle of territoriality of laws. Instead of looking for
theoretical explanations, it might be better to approach the whole
problem from a practical point of view. Justice to litigants and
economic necessity, in other words, public policy, force the courts
to take into consideration the fact that it is impossible to fairly
determine the rights of the parties if foreign judgments were to
be ignored.
O See section II (4).
G’ See section II (4).
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II. Actionability of Foreign Judgments
1) Jurisdiction in personam and in rem
Canadian courts will not give effect to a foreign judgment which
was rendered by a court that lacked jurisdiction in the inter-
national sense.52 This is the most important of all requirements
for the recognition and enforcement of foreign judgments in Canada.
Was the foreign court entitled to summon the defendant and subject
him to judgment? Did it have jurisdiction over the subject matter
of the action? In general, at the time when the action was com-
menced, there must have been a substantial direct and durable
relation or connection between the state or province where the
foreign court sits and the subject matter or the person against
whom that court gave judgment.
Characterization
Whether a foreign judgment is one in rem or in personam must be
determined as a fact by the court in which it is sought to have the
judgment recognized regardless of the opinion or view which may have
been expressed by the foreign court.53 This fact is to be arrived at by
dicovering the effect of the proceeding according to the law of the
foreign law district.54
Thus in Jones v. Smith,55 the Ontario court examined the law
of California to ascertain the effect of proceedings to distribute the
movables of a testator who died domiciled in that State. Middleton
S.A. said:
52 Vezina v. Will H. Newsome (1907), 14 O.L.R. 658, 10 O.W.R. 17; Queen v.
Wright (1877), 17 N.B.R. 363 (C.A.); Mattar and Saba v. Public Trustee (1951),
3 W.W.R. (N.S.) 287 (Alta) aff’d [1952] 3 D.L.R. 399 (CA.); Burn V. Bletcher
(1863), 23 U.C.Q.B. 28 (C.A.); Webster MacLaughlan Co. v. Connors Bros. Ltd.
(1935), 9 M.P.R. 345, [1935] 2 D.L.R. 483 (N.B.) see 10 M.P.R. 159, [1936] 2 D.L.R.
164 (C.A.); Wanderers Hockey Club v. Johnson (1913), 5 W.W.R. 117, 25 W.L.R.
434, 18 B.C.R. 367, 14 D.L.R. 42 (C.A.); Bank of Ottawa v. Esdale, [1920] 1
W.W.R. 913, 15 Alta L.R. 269, 51 D.L.R. 485; Schneider v. Woodworth (1884),
1 Man. R. 41; Fairchild v. McGillivray (1910), 16 W.L.R. 562, 4 Sask. L.R. 237;
State Bank of Butler v. Benzason (1914), 27 W.L.R. 812, 16 D.L.R. 848; Willie v.
Martin, [1931] 3 W.W.R. 465 (B.C.); British American Investment Co. v. Flawse
(1911), 19 W.L.R. 253, 4 Sask. L.R. 372; Curtis v. Curtis, [1943] O.W.N. 382;
Capital Nat. Bank v. Merrifield, [1968] 1 O.R. 3 (how to establish jurisdiction).
53 Burchell v. Burchell (1926), 58 O.L.R. 515; See also Evans v. Evans (1911),
19 W.L.R. 237 (Alta), aff’d (1912), 50 S.C.R. 262 which illustrates the distinction
between a judgment in rem and a judgment in personam. And Bonn v. National
Trust Co. Ltd. (1930), 65 O.L.R. 633.
54 Read, op. cit., pp. 133-134.
55 (1925), 56 O.L.R. 550, [1925] 2 D.L.R. 790, 27 O.W.N. 447 (C.A.).
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RECOGNITION AND ENFORCEMENT
It may well be that such an adjudication of the Court, to the English
idea, is not strictly a judgment in rem, but it partakes strongly of the
incidents of such a judgment… This, however, is immaterial, for it
was determined by the Lords in Castrique v. Imrie (1870), 4 H.L. 414,
is for the court of the domicile to determine whether the
that it
proceedings in that court are in rem or merely in personam, and that
when that court determines that its proceedings are in rem all foreign
courts must so treat the proceedings, although they would not be so
recognized by the law of the country where the judgment is set up.
The California judgment was considered in rem although a
similar Ontario judgment would not have so operated.
In the absence of proof of the foreign law, the foreign judgment
will be deemed to be the same as a domestic judgment of a similar
nature 0l”
Quebec judgments in Ontario
In Ontario, sections 52 and 53 of the Judicature Act5r’ do not
affect the rules of international jurisdiction. A judgment of a
Quebec court is to be treated in Ontario as a judgment pronounced
in a foreign country. 8 These sections only refer to the conclusiveness
of Quebec judgments.
General Principles
The foreign court must have had power to render a judgment
that will be recognized by the courts of other countries.
In Sirdar Gurdyal Singh v. Rajah of Faridkote59 The Earl of
Selborne stated:
jurisdiction attaches
All jurisdiction is properly territorial and extra territorium jus dicenti
(with special
impune non paretur. Territorial
exceptions) upon all persons either permanently or temporarily resident
within the territory, while they are within it; but it does not follow
them after they have withdrawn from it, and when they are living in
another independent country. It exists always as to land within the
territory, and it may be exercised over movables within the territory;
and, in question of status or succession governed by domicil, it may
exist as to persons domiciled, or who when living were domiciled, within
the territory. As between different provinces under one sovereignty
(e.g., under the Roman Empire) the legislation of the sovereign may
distribute and regulate jurisdiction; but no territorial legislation can
5ODavidson v. Sharpe (1920), 60 S.C.R. 72.
57R.S.O., 1960, c. 197 as am., discussed infra.
5 8 Curtis v. Curtis, [1943] O.W.N. 382; Vezina v. Will H. Newsome Co. (1907),
14 O.L.R. 658.
59 [1894] A.C. 670, at p. 683.
McGILL LAW JOURNAL
[Vol. 17
give jurisdiction which any foreign court ought to recognise against
foreigners, who owe no allegiance or obedience to the Power which so
legislates.
In a personal action, to which none of these causes of jurisdiction
apply, a decree pronounced in absentem by a foreign court, to the
jurisdiction of which the defendant has not in any way submitted
himself, is by international law an absolute nullity. He is under no
obligation of any kind to obey it; and it must be regarded as a mere
nullity by the courts of every nation except (when authorized by special
local legislation) in the country of the forum by which it was pronounced.
The doctrine of territoriality has greatly influenced jurisdictional
theory.60
The essence of the capacity to exercise jurisdiction lies in the
relationship between the territory of the foreign country and the
defendant. In other words, jurisdiction depends on the existence,
at the time when the foreign action was commenced, of a bond
between the person of the defendant and the foreign court sufficient
to justify the creation of a right which will be recognized by the
law of the forum. This is the basic Anglo-Canadian doctrine which
recognizes that a court of a foreign country has jurisdiction to
adjudicate the rights of a defendant who was present in the foreign
country at the time the action was commenced and therefore could
be served with a writ of summons. It has its foundation in the
physical-power common law theory of jurisdiction which has been
projected into the international field.
Jurisdiction is also based upon a wider conception than mere
physical power, since submission of the defendant to a court which
otherwise is not competent
is recognized by Canadian courts.
Voluntary appearance does not necessarily involve any physical
power or relationship between the defendant and the foreign forum.
Moreover, it is possible to submit to the jurisdiction, without being
present, by consent, express or implied, as in contractual submission.
But, if, in all these cases, the relation is not purely physical, it
must nevertheless be durable and direct. It is not always necessary
to enter the foreign country to consent effectively to the jurisdiction
of its courts, and complete absence of physical power over a national
or domiciled person, of or in, the foreign country does not destroy
the jurisdiction of the foreign court; a contrario, it is to be noted
60 Walsh v. Herman (1908), 7 W.L.R. 388, 13 B.C.R. 314 (C.A.); See also
Vezina v. Will H. Newsome Co. (1907), 14 O.L.R. 658, at p. 659; Richer v. Borden
Farm Products Co. (1921), 49 O.L.R. 172, at p. 174; Frederick A. Jones, Inc. v.
Toronto General Insurance Co., [1933] O.R. 428, at p. 433, [1933] 2 D.L.R. 660
(CA.); Webster MacLaughlan Co. Ltd. v. Connors Bros. Ltd. (1935), 9 M.P.R.
345, at p. 351, [1935] 2 D.L.R. 483 (N.B.).
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RECOGNITION AND ENFORCEMENT
that mere physical power does not, in itself, confer jurisdiction in
the case of temporary presence or occasional business by a foreign
corporation.
It was stated by Dr. Read that if the primary basis of jurisdiction
is physical power there are also secondary considerations of reason,
expedience, and fairness involved in it. He believes that there has
been a transition from the physical force theory of jurisdiction to
the theory of reason, as expressed by his observation that:
Recognition by the common law that a valid foreign judgment con-
clusively establishes that a right has been created by the judicial process
made that change logically inevitable, because the judicial process, of
creating rights as distinguished from the executive function of enforcing
‘not an exercise of physical power at all, but of the
them involves
intellectual process of making a decision.0’
Today a new trend is emerging which combines the best aspects
of all previous theories and rejects the principle of territoriality.
A foreign court will be deemed to have international jurisdiction
if the defendant had a real substantial connection with the country
of the court pronouncing the judgment. This new basis for the
exercise of jurisdiction which so far has only been applied in the
field of divorce has a bright future in other fields. It would not
be surprising if in a few years it became the foundation of juris-
diction both internally and externally in actions in rem and in
personam. Actually, some of the present jurisdictional rules already
reflect this concept.
Quite often the question of the international jurisdiction of the
foreign court is complicated by the existence of special statutes
that have enlarged the authority of that court. At common law, the
courts have often assumed that the rules of jurisdiction concerning
domestic and international cases were the same, taking the position
that what the court does itself the foreign court can do; on the
other hand, when the jurisdiction of the court is enlarged by some
statutory rules, there has been a reluctance to apply such rules on a
reciprocal basis and extend by analogy the jurisdiction of the
foreign court. Thus, it has been held that a foreign court cannot
extend its process beyond its own territory so as to subject either
persons or property to its decisions..0 Unless the defendant served
61 Read, op. cit., p. 259.
62 Deacon v. Chadwvick (1901), 1 O.L.R. 346, at p. 351; See also Swaizie v.
Swaizie (1899), 31 O.R. 324, at pp. 330-1; Richer v. Borden Farm Products Co.
(1921), 49 O.L.R. 172, 64 D.L.R. 70 (C.A.); Webster MacLaughlan Co. Ltd. v.
Connors Bros. Ltd. (1935), 9 M.P.R. 345, [1935] 2 D.L.R. 483 (N.B.); cf. Canada
Wood Specialty Co. v. Moritz (1909), 42 S.C.R. 237, 17 O.L.R. 53, 11 O.W.R. 1048,
9 O.W.R. 522, 887 (CA.).
McGILL LAW JOURNAL
[Vol. 17
outside the territorial jurisdiction of the foreign court submitted
to its jurisdiction, the judgment of that court is a nullity everywhere
except in the country of the forum. 3
The international jurisdiction is the only one recognized by
Canadian courts and it is irrelevant whether or not the foreign
court was entitled, under its own domestic law of procedure or
conflict of laws, to deal with the case.04 The enforcing court will
determine the international
jurisdiction of the original court
exclusively on the basis of its own rules of conflict of laws. In
other words, the conflict of laws rules of the enforcing court state
the cases in which a foreign court is competent to give judgment.
Thus, a foreign judgment may have a wider effect internationally
than locally. 5
It follows that a finding by the foreign court that it has juris-
diction is not binding on the enforcing court. 0 This does not
mean that these rules are able to confer jurisdiction upon or take
it away from a foreign court. The foreign court derives its juris-
diction from its domestic law only. What the enforcing court
actually does amounts to testing, in its own terms, a requirement
for granting territorial extension to the foreign judgment.
Actions in personam
The international jurisdiction of foreign courts in actions in
personam is based on the principles of presence and submission.
The enforcing court does not inquire into the local jurisdiction
of the foreign court under the latter’s domestic law, although in
certain cases it may examine the pertinent statutes setting up the
foreign court to determine whether it had jurisdiction over the
general subject matter. No inquiry will be made as to the correctness
of the venue. 7 The general attitude is that when the foreign court
took jurisdiction over the subject matter and the parties, the court
63 Wedlay v. Quist (1953-54), 10 W.W.R. (N.S.) 21, [1953] 4 D.L.R. 620.
64 Vanquelin v. Bouard (1863), 15 C.B. (N.S.) 341.
05 Pemberton v. Hughes, [1899] C.A. 1 Ch. 781.
(6 Frederick A. Jones Inc. v. Toronto General Ins. Co., [1933] O.R. 428, [1933]
2 D.L.R. 660 (C.A.); Per Marten, JA.: “It is well settled law that if the existence
of a fact is necessary to the jurisdiction of a Court of a State to act judically
a finding by that Court that the fact exists will not be conclusive in the Court
of another State. For if the alleged fact is not true the foreign Court has
no jurisdiction to act and its finding of fact is coram non judice”.
67 See Vanquelin v. Bouard (1863), 15 C.B. (N.S.) 341; Pemberton v. Hughes,
[1899] 1 Ch, 781 (C.A.); Bater v. Bater, [1906] P. 209.
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RECOGNITION AND ENFORCEMENT
knew its own jurisdiction and properly exercised it.68 As Canadian
courts do not sit as courts of appeal in respect to foreign judgments,
the local competence of the foreign court to deal with the case
before it, is determined by the rules prevailing in the foreign
country. 9 As noted above, the only jurisdiction which really matters
is the international jurisdiction of the foreign court. Where the
foreign state had jurisdiction according to the standard set by the
lex fori, all the interests of the forum are safeguarded.
It is customary for Canadian courts to cite the dicta of Lord
Justice Buckley in Emanuel v. Symon 7″ as representing the rules
concerning international jurisdiction in actions in personam. These
dicta are based on the views expressed by Fry J. in Roussilon v.
Roussilon,71 and Blackburn J. in Schibsby v. Westenholz.72
A foreign court will be recognized as possessing international
jurisdiction with respect to actions in personam in the following
situations:
(1) Where the defendant is a subject of the foreign country in
which the judgment was obtained;
(2) Where the defendant at the time of the commencement of
the proceedings was physically present in or a resident of, or
domiciled in, the foreign country in which the judgment was
obtained;
(3) Where the litigant voluntarily had submitted himself to the
jurisdiction of the court of the foreign country in which the
judgment was obtained:
(a) where the defendant as a plaintiff or counter-claimant had
selected the foreign court,
6SPemberton v. Hughes, [1899] 1 Ch. 781 (C.A.), per Lindley M.R.
69Pemberton v. Hughes, [1899] 1 Ch. 781 (C.A.).
70 [1908] 1 K.B. 302.
71 (1880), 42 L.T. Rep. 679, 14 Ch. Div. 351. In Canada see: Moritz v. Canada
Wood Specialty Co. (1908) 17 O.L.R. 53, 9 O.W.R. 522, 887, 11 O.W.R. 1048;
Deacon v. Chadwick (1901), 1 O.L.R. 346; Ontario Power Co. of Niagara Falls
v. Niagara, Lockport and Ontario Power Co. (1922), 52 O.L.R. 168, at p. 173;
Metropolitan Trust & Savings Co. v. Osborne (1909), 14 O.W.R. 135, at p. 140,
aff’d 1 O.W.N. 785, 16 O.W.R. 226; Gifford v. Calkin (1912), 45 N.S.R. 277, 9
E.L.R. 498; Curtis v. Curtis, [1943] O.W.N. 382; Webster MacLaughlan Co. v.
Connors Bros. Ltd., [1935] 2 D.L.R. 483 (N.B.); Mattar and Saba v. Public
Trustee (1951), 3 W.W.R. (N.S.) 287, aff’d [1952] 3 D.L.R. 399 (Alta C.A.);
Fairchild v. McGillivray (1910), 16 W.L.R. 562, 4 Sask. L.R. 237; Walsh v. Her-
man (1908), 13 B.C.R. 314; Re Robertson, Robertson v. Robertson (1875), 22
Gr. 449.
72 (1870), L.R. 6, Q.B. 155.
McGILL LAW JOURNAL
[Vol. 17
(b) where the defendant voluntarily had appeared,
(c) where the defendant had contracted to submit himself to
the forum in which the judgment was obtained.
Ownership, by the defendant, of property within the foreign
jurisdiction, in respect of which the cause of action arose is no
longer considered by the courts as a good basis of personal juris-
diction over him.7 3 However a judgment in personam rendered
by the court of the situs will be valid to the extent of the property.”4
1) Where the defendant is a subject of the foreign country in which
the judgment was obtained.
International jurisdiction based on allegiance has been recognized
by Canadian authorities. 7″ However, the matter is not yet settled
73 See Emanuel v. Symon, [1908] 1 K.B. 302, at pp. 311-312; Sirdar Gurdyal
Singh v. Rajah of Faridkote, [1894] A.C. 670; Read, op. cit., p. 186; Beaty v.
Cromwell (1883), 9 P.R. 547 (Ont.); Cf. Buffalo & Lake Huron Railway v. Hem-
mingway (1863), 22 U.C.Q.B. 562 (C.A.), where it was held that a party whose
goods have been placed by himself or with his consent within the jurisdiction
of a foreign court, is personally liable to the jurisdiction of that court, so
far as any question or proceeding affecting the goods is concerned, as fully
as a resident within the jurisdiction.
74Burn v. Bletcher (1863), 23 U.C.Q.B. 28 (C.A.).
7 5 Marshall v. Houghton (1923), 33 Man. R. 166, affirming [1922] 3 W.W.R. 65,
68 D.L.R. 308 (CA.); Bugbee v. Clergue (1900), 27 O.A.R. 96, at p. 99, aff’d (1902),
31 S.C.R. 66, per Armour CJ.: “So … we have a regular judgment binding on
the defendant in the State of Maine according to the law of that State, and
I see no reason why it should not be enforced against him, a subject of that
State, following what was said by the Court in Schibsby v. Westenholz (1870),
L.R. 6 Q.B. 155:
‘If the defendants had been at the time of the judgment
subjects of the country whose judgment is sought to be enforced against
them, we think that its laws would have bound them’. And there is no hard-
ship in so holding for the defendant, after he heard of the judgment and at
any time since, could have had his writ of review in the Supreme Judicial
Court of the State of Maine… and he still maintains his allegiance to the
United States and disclaims any allegiance to this country.” Fowler v. Vail
(1879), 4 OA.R. 267, at p. 272, varying 27 U.C.C.P. 417. A plea which denied
the jurisdiction of the foreign court on several counts, but omitted to aver
that the defendant was not a subject of the foreign country was held to
be bad. Patterson IA. said: “The court has ‘jurisdiction of the person’ of the
defendant when he is a subject of the country, even though not a resident
or domiciled in it; and he is therefore (under the English law) bound by a
judgment recovered under the process of the country to which he owes
allegiance.” See also British Linen Co. v. McEivan (1892), 8 Man. R. 99 (C.A.).
Contra: Attorney-General of B.C. v. Busch Kewitz, [1971] 3 W.W.R. 17, at p. 21
(B.C. Co. Ct.).
NO. 1]
RECOGNITION AND ENFORCEMENT
as there is no clear cut decision supporting the view that the
defendant is bound where he is a subject of the foreign country
but was never a resident therein and never submitted to the
jurisdiction of its courts. In England, Douglas v. Forrest6 is cited
as the foundation of the doctrine of jurisdiction based upon citizen-
ship. Later, in Schibsby v. Westenholz77 and Gavin, Gibson & Co.,
Ltd. v. Gibson,78 it was said that a subject of the foreign state owes
permanent allegiance to that state in the exercise of its functions,
including those of the judiciary. On the other hand, in the Faridkote
case, Lord Selborne declared that while territorial jurisdiction
generally attaches upon all persons so long as they are either
permanently or temporarily resident within the territory, it does
not follow them when they have withdrawn from the territory.
However, he also said that no territorial legislation can grant
jurisdiction which any foreign court ought to recognize against
foreigners who owe neither allegiance nor obedience to the legislating
power. 79
Unqualified personal allegiance appears to be an exception to
the territorial limitation of jurisdiction.
The problem has been obscured by the fact that, at common law,
jurisdiction is actually acquired by personal service upon the
defendant. Will the court recognize the jurisdiction of the foreign
court over the defendant, when such jurisdiction is based solely
on citizenship of the defendant regardless of the mode of service?
In Bugbee v. ClergueY’ which involved an action brought on a judg-
ment rendered in the State of Maine against a defendant at all
times a subject of the United States of America, Osler CJ. said:
We adhere to the findings of the trial Judge, that when the proceedings
were commenced the defendant was not a resident of the State [of Maine],
but was, as he still is, residing and carrying on business in this country.
I do not think it is shewn that the defendant has made this the country
of his domicil in the sense of its being his permanent home, if that
be an element in the case…
Unless the absence of notice to the defendant involves such a
jurisdictional error as to compel our courts to regard the judgment as
invalid, it seems clear, the defendant having been a subject of the
foreign state in which it was recovered, that it was a judgment pronounced
by a court of competent jurisdiction, that is to say, a court which had
70 (1828), 4 Bing 686.
77 (1870, L.R. 6 Q.B. 155.
78 [1913] 3 K.B. 379.
79Singh v. Rajah of Faridkote, [1894] A.C. 670; See also Emanuel v. Symon,
[1908] 1 K.B. 302.
80 (1900), 27 O.A.R. 96, at p. 107, aff’d 31 S.C.R. 66.
McGILL LAW JOURNAL
[Vol. 17
jurisdiction to summon the defendant to appear before it and to decide
such matters as it has decided.
In Dakota Lumber Co. v. Rinderknecht8l Scott J. was of the
opinion that where the defendant was residing out of the jurisdiction
of the South Dakota court at the time of the proceedings the fact
that he was then a citizen of the United States did not give that
court jurisdiction over him.
A British subject or a citizen of the United States is governed
by the laws affecting the Empire as a whole or the federal laws
and those of the particular state in which he resides and perhaps
also those of the place where he was born.
It is not correct to speak of the United States as one “country”
as each state is a separate country, a separate legal district, or a
territory subject to one system of law. The term country has a legal,
as distinct from political, sense. This distinction must be borne in
mind in applying the rule that if a defendant was at the time of the
judgment a subject of the country whose judgment is sought to
be enforced, he would be bound by it. Here the defendant was
not a subject of South Dakota when the original judgment was
rendered. In federal states, for some purposes, allegiance is equiva-
lent to residence.
If citizenship were to be recognized as a basis for jurisdiction,
the enforcing courts should always determine whether the defendant
had an opportunity to defend himself, and whether he had been
properly served in the foreign country. Citizenship does not appear
to be a practical basis for jurisdiction in a federal state like Canada.
2) Where the defendant was at the time of the commencement of
the proceedings physically present in or a resident of or domiciled
in the foreign country in which the judgment was obtained.
Physical presence
The first situation to be considered is where the defendant is
within the territorial limits of a country under such circumstances
as to owe temporary allegiance to it.
In Alberta it was held that the foreign court had jurisdiction if
it appears that at the commencement of the proceedings, the de-
fendant was physically present in the foreign country whether on
a special visit or merely in the course of his travels even if very
81 (1905), 6 Terr. L.R. 210, (1905), 2 W.L.R. 275 reversing (1905), 1 W.L.R. 481
(CA.).
No. 1]
RECOGNITION AND ENFORCEMENT
soon afterwards he left the territorial area of the foreign juris-
diction . 2
The principle of presence is not based on political allegiance as
such, but on allegiance within the limits of territorial jurisdiction.
This represents a compromise between the conflicting notions of
territoriality and nationality. It is an allegiance owed to the sovereign
by all persons temporarily present in its territory.8 3
If a non-resident is brought into the foreign state by force or
by fraud on the part of the plaintiff or where the defendant came
only as a witness, the foreign court will not validly acquire juris-
diction over him. Of course the defendant must be personally served
within the foreign state.
There has been considerable criticism of jurisdiction over a de-
fendant arising from temporary presence within the state, on the
ground that the possibility of occasional hardship to the plaintiff’s
cause is insufficient to justify the adoption of rules depriving the
defendant of the power to defend on the merits at his own place
of residence. It is submitted, however, that this rule should be
retained as long as the defendant was personally served and had
an opportunity to be heard.
Residence
Residence of a defendant in a foreign country at the time when
proceedings are begun against him gives the courts of that country
jurisdiction over him.84 Actually, it is often difficult to distinguish
82 Forbes v. Simmons (1914), 20 D.L.R. 100 (Alta), 8 Alta L.R. 87, 7 W.W.R. 97,
29 W.L.R. 445; See also Macaulay v. O’Brien (1897), 5 B.C.R. 510, at p. 515
(capias ad respondendum); compare Casavallo v. Casavallo (1911), 1 W.W.R.
212, 4 Alta L.R. 6 (divorce and alimony decree).
83 Forbes v. Simons, (1914), 20 D.L.R. 100 (Alta.), 8 Alta. L.R. 87, 7 W.W.R. 97,
29 W.L.R. 445.
84 Emanuel v Symon, [1908] 1 K.B. 302, at p. 309; Schibsby v. Westenholz
(1870), L.R. 6 Q.B. 155; Re Robertson-Robertson v. Robertson (1875), 22 Grant
449, at p. 456; Read v. Ferguson (1912), 8 D.L.R. 737, 3 W.W.R. 611, 22 W.L.R.
751, 5 Sask. L.R. 405. For cases involving lack of residence, see Curtis v. Curtis,
[1943] O.W.N. 382; Belcourt v. Noel (1913), 3 W.W.R. 926, 23 W.L.R. 368, 9
D.L.R. 788 (Alta); Lung v. Lee (1929), 63 O.L.R. 194, [19291 1 D.L.R. 130 (C.A.);
Davidson v. Sharpe, [1919] 2 W.W.R. 76, 12 Sask. L.R. 183, 46 D.L.R. 256,
affirming [1919] 1 W.W.R. 469, aff’d [1920] 1 W.W.R. 888, 60 S.C.R. 72, 52 D.L.R.
186; Gauthier v. Blight (1855), 5 U.C.C.P. 122 (C.A.); Brennan v. Cameron (1910),
1 O.W.N. 430, 15 O.W.R. 331; Cyr V. Sanfagon (1853), 7 N.B.R. 641 (CA.);
McCullough v. Defehr (1909), 11 W.L.R. 524 (Sask.); Berry v. Lewis (1960),
67 Man. R. 347; McLorg v. Stanning (1908), 7 W.L.R. 701 (Man. C.A.).
McGILL LAW JOURNAL
[Vol. 17
residence from mere presence. It could be argued that residence
means nothing more than such presence of the defendant as makes
it possible to serve him with a writ or other process by which
the action is commenced. Thus residence for purposes of juris-
diction in the case of foreign judgments equals physical presence.
However, physical presence in the country must be distinguished
from residence, on the ground that, service beyond the jurisdiction
will be good in the case of residence, but not in the case of mere
presence. In the latter situation, the defendant must be served
within the jurisdiction. 5
In the case of a corporation, residence means the carrying on
of some business at a definite and, to some reasonable extent, per-
manent place.8 6
Residence is certainly a very realistic test of jurisdiction. It meets
some of the criticisms raised against mere physical presence and
is easier to ascertain than domicile.
Domicile
The courts of the various provinces assert jurisdiction in per-
sonam over a defendant domiciled within their territory.8 7 Will they
recognize a similar jurisdiction in the foreign courts? The answer
is not clear. Morris believes that in England domicile is not a suf-
ficient ground for the jurisdiction of a foreign court,88 because only
dicta support this view. Dr. Read does not agree with Morris on
the ground that Douglas v. Forrest upheld domicile rather than
nationality as a basis for jurisdiction. 9
The domiciliary doctrine of jurisdiction seems satisfactory since
everyone must have a domicile. There will always be one country
where a debtor may be sued. In fact in some Canadian cases there
are indications that the domicile of the defendant, in the absence
of residence would be sufficient to give the foreign court juris-
diction 0
85 Read, op. cit., p. 156.
86Littauer Glove Corp. v. F. W. Millington (1928), 44 T.L.R. 746; Frederick
A. Jones Inc. v. Toronto General Insurance Co., [1933] O.R. 428, at p. 439.
87 Ontario rule 25(c).
8 8 Dicey, Morris, 8th ed., 1967, p. 984.
89 (1828), 4 Bing. 686.
90 Fairchild v. McGillivray (1910), 16 W.L.R. 562, 4 Sask. L.R. 237; Haspel v.
Haspel, [1934] 2 W.W.R. 412, at pp. 414-415; Burpee v. Burpee, [1929] 3 D.L.R.
18, [1929] 2 W.W.R. 128, 41 B.C.R. 201; Lung v. Lee (1929), 63 O.L.R. 194, [1929]
1 D.L.R. 130 (CA.); Marshall v Houghton, [1923] 2 W.W.R. 553, 33 Man. R. 166,
No. 1]
RECOGNITION AND ENFORCEMENT
Although domicile, as a ground for jurisdiction is superior to
allegiance, it is not fully adequate due to the difficulties involved
in ascertaining its existence. Dr. Read 91 suggests that if domicile
were to be adopted as a ground for jurisdiction, it should be
accompanied by residence or presence. Under these circumstances
why not reject domicile altogether and make habitual residence
the sole test of compelled submission to the jurisdiction of the
foreign court?
3) Where the litigant voluntarily had submitted himself to the
jurisdiction of the court of the foreign country in which the
judgment was obtained.
The question whether a defendant to an action in a foreign court
has submitted to the jurisdiction of the court is one of fact
2
a) Where the defendant as a plaintiff or counter-claimant had se-
lected the foreign court.
When a person in his capacity as plaintiff, selected the foreign
court as forum to bring his action, he cannot afterwards complain
that such court had no jurisdiction to give judgment against him 3
Any other rule would be contrary to the principle of res judicata.
The plaintiff is deemed to have submitted to its jurisdiction and
decision and any set-off, counterclaim, or cross action which may
be brought against him during the course of the action. The rule
applies whether or not the defendant in the cross action, was
resident in the country where as plaintiff he originally brought
at pp. 182-183 affirming [1922] 3 W.W.R. 65, 68 D.L.R. 308 (CA.); McCullough
v. Defehr and Dyck (1909), 2 Sask. L.R. 303; Richer v. Borden Farm Products
Co. (1921), 49 O.L.R. 172, at pp. 174-175 (C.A.); Brennan v. Cameron (1910), 1
O.W.N. 430, 15 O.W.R. 331; Deacon v. Chadwick (1901), 1 O.L.R. 346, at p. 352;
Gibbons Ltd. v. Berliner Gramophone Co. (1912), 27 O.L.R. 402, at p. 404.
9′ Read, Op. cit., p. 160.
92Richardson v. Allen (1916), 11 Alta. L.R. 245, 10 W.W.R. 720, 34 W.L.R.
606 (C.A.);Mattar and Saba v. Public Trustee (1952), 5 W.W.R. (N.S.) 29, [1952]
3 D.L.R. 399 (C.A.) consent to judgment is a submission to the jurisdiction
of the court; Dent v. Hutton, [1923] S.C.R. 716, [1924] 1 D.L.R. 401.
9 3 Dictum by Blackburn, J. in Schibsby v. Westenholz (1870), L.R. 6 Q.B. 155,
at p. 161; Re Robertson, Robertson v. Robertson (1875), 22 Gr. 449, at p. 455;
Burpee v. Burpee (1929), 41 B.C.R. 201; Swaizie v. Swaizie (1899), 31 O.R. 324,
at p. 330; Burn!ield v. Burnfield, [1925] 2 W.W.R. 629, [1925] 3 D.L.R. 935, rev.
on other grounds [1926] 1 W.W.R. 657, [1926] 2 D.L.R. 129, 20 Sask. L.R. 407;
Deacon v. Chadwick (1901), 1 O.L.R. 346, at pp. 349-350.
McGILL LAW JOURNAL
[Vol. 17
the, action. This does not mean that a reluctant claimant in inter-
pleader proceedings must submit to a counterclaim by the original
plaintiff, which is in fact an additional claim, nor need the plaintiff
submit to a cross action which could not have been made the
subject of a counterclaim. It is understood that in the case where
the action is brought in the name of the plaintiff without his
authorization, he is not deemed to have subjected himself to the
jurisdiction of the foreign court. If the defendant makes a counter-
claim in the foreign court he also submits to the jurisdiction of
that court.
b) Where the defendant voluntarily had appeared.
It is well established that a person who voluntarily appears as
a defendant submits himself to the judgment of the foreign court 4
This may occur in different ways:
1) the defendant may appear
and plead to the merits without protesting lack of jurisdiction;
2) he may appear and although protesting to the jurisdiction, plead
to the merits; 95 or 3) he may appear for the sole purpose of
contesting jurisdiction.
In Voinet v. Barrett9″ it was held that an appearance, unless
made under duress, pressure, or compulsion, is an election to
submit to the jurisdiction from which the process has issued and
constitutes voluntary appearance.97
94 Harris v. Taylor, [1915] 2 K.B. 580.
95 Richardson v. Allen (1916), 28 D.L.R. 134, 10 W.W.R. 720, 34 W.L.R. 606 (C.A.)
11 Alta L.R. 245, affirming (1915), 24 D.L.R. 883, 31 W.L.R. 437; McFadden v.
Colville Ranching Co. Ltd. (1915), 8 W.W.R. 163, 30 W.L.R. 909 (Alta).
96 (1885), 55 L. .Q.B. 39 (CA.).
9 7Richardson v. Allen (1916), 10 W.W.R. 720, 34 W.L.R. 606, 11 Alta L.R. 245,
28 D.L.R. 134, affirming (1915), 31 W.L.R. 437, 24 D.L.R. 883; Dudley v. Jones
(1876), 10 N.S.R 306; Kingsmill v. Warrener (1852), 13 U.C.Q.B. 18; Tilton v.
McKay (1874), 24 U.C.C.P. 94; Re Robertson, Robertson v. Robertson (1875),
22 Gr. 449, at p. 454; Turcotte v. Dawvson (1879), 30 U.C.C.P. 23; Solmes v.
Stafford (1893), 16 P.R. 78 aff’d 264; Shearer & Co. v. McLean (1903), 36 N.B.R.
284, at p. 291 (CA.); Baldwin & Co. v. Smith (1911), 18 W.L.R. 207 (Sask.)
(if the appearance is due to the defendant’s mistake, he must prove it); Charles
H. Lilly Co. v. Johnston Fisheries Co. (1909), 14 B.C.R. 174 (C.A.)
(1909), 10
W.L.R. 2; Wedlay v. Quist (1953), 10 W.W.R. (N.S.) 21 (Alta); Huntingdon v.
Marion (1925), 28 O.W.N. 221, aff’d 29 O.W.N. 187 (C.A.); McLean v. Shields
(1885), 9 O.R. 699 (C.A.); McFadden v. Colville Ranching Co., Ltd. (1915), 8
W.W.R. 163 (Alta); The Dominion Coal Co. v. Kingsivell S.S. Co., Ltd. (1898),
30 N.S.R. 397; Harris v. Garson (1921), 51 O.L.R. 37, at p. 40; Grocers’ Whole-
sale Co. v. Bostock (1910), 22 O.L.R. 130, at p. 143, 2 O.W.N. 144, at p. 149, 17
O.W.N. 129, at p. 141, (1912), 3 O.W.N. 1588; Star Kidney Pad Co. v. McCarthy
(1886), 26 N.B.R. 107, at p. 111.
No. 1]
RECOGNITION AND ENFORCEMENT
If the defendant takes the chance of a judgment in his favour,
he is bound9 Whether or not the defendant has voluntarily appeared
is a question of factf 9 A special or conditional appearance entered
by the defendant solely for the purpose of objecting that the
court has no jurisdiction over him should not subject him to the
jurisdiction of the court.
Such appearance would seem to constitute a request that the
court advise whether the defendant must answer or suffer a valid
default judgment.
The court has, by the special or conditional appearance, limited
jurisdiction to determine its ultimate jurisdiction, and its decision
becomes res judicata between the parties.10 Once the question of
jurisdiction has been dealt with and the case is decided on the
merits, the defendant who is not satisfied with the decision on the
question of jurisdiction would have to appeal in the original state
and not attack collaterally the judgment in the state where the
judgment is sought to be enforced. If the defendant filed a con-
ditional appearance to contest the jurisdiction of the foreign court
but raised defences on the merits he is considered to have submitted
to the jurisdiction of that court.”” It has been held that if the
defendant takes no part in the proceedings and a default judgment
is given against him, his appearance is not voluntary when later
on he moves to set the default judgment aside 1 2
Statutes in the original court may also provide that an ap-
pearance by a defendant for the sole purpose of objecting to the
0s Schibsby v. Westenholz (1870), L.R. 6 Q.B. 155, per Blackburn J., at p. 162,
citing De Cosse Brissac v. Rathbone (1861), 6 H. & N. 301, 30 L.J. (Ex) 238.
99 Richardson v. Allen (1916), 28 D.L.R. 134, 11 Alta L.R. 245; Bank of Ottawa
v. Esdale, [1920] 1 W.W.R. 913, 15 Alta L.R. 269, 51 D.L.R. 485 (Alta) reversing
[1920] 1 W.W.R. 283, 51 D.L.R. 168 (CA.).
100 See Kennedy v. Trites Ltd. (1916), 10 W.W.R. 412 (B.C.): Defendants,
resident in British Columbia, were sued in Ontario, and filed a conditional
appearance, and later moved to set aside the writ and service, on the ground
that the Ontario Courts had no jurisdiction. Defendants were unsuccessful in
this application. They took no further part in the proceedings, and judgment
was eventually entered against them. In an action in British Columbia upon
this judgment it was held, following Harris v. Taylor, [1915] 2 K.B. 580, that
defendants could not again raise the question of jurisdiction.
lol McFadden v. Colville Ranching Co. (1915), 8 W.W.R. 163, 30 W.L.R. 909
(Alta); See also Richardson v. Allen (1916), 28 D.L.R. 134 (1915), 10 W.W.R.
720, 34 W.L.R. 606, 11 Alta L.R. 245, affirming (1915), 24 D.L.R. 883, 31 W.L.R. 437.
102 McLean v. Shields (1885) 9 O.R. 699; Bank of Ottawa v. Esdale (1920),
51 D.L.R. 485, [1920] 1 W.W.R. 913, 15 Alta L.R. 269, Rev. [1920] 1 W.W.R. 283,
51 D.L.R. 168 (CA.).
McGILL LAW JOURNAL
[V/ol. 17
jurisdiction of the court shall subject him to its jurisdiction for
all purposes.
Where the defendant enters an appearance in order to protect
property belonging to him that has already been seized by the
is not voluntary.0 3 However in
foreign court, the appearance
Huntington v. Marion where the defendant entered a limited ap-
pearance to resist the interim seizure of his goods, he was deemed
to have submitted to the jurisdiction in as much as he did not
dispute the merits of the case 3 4
The appearance is voluntary where the defendant, animated by
fear, appears for the purpose of protecting property on which
execution may be levied or which may be seized pursuant to an
action in personam pending against him, and the property is actually
within the territory of the foreign country. 10 5 It is also considered
a voluntary appearance where the defendant, though having no
property at the time the foreign action was commenced within
the dominion of the foreign court, appears in the action brought
against him, because he fears that a judgment rendered against
him might be made effective, should he later bring property into
the foreign state.0 6
Actually it is difficult to see why there should be any difference
between a case where the appearance is entered to protect property
actually seized and a case where the appearance is entered to
protect property which may become subject to seizure. The defendant
appearing should not be bound in either case.
Where a defendant is sued in a foreign court and is not already
subject to its jurisdiction in personam in the international sense,
his wisest course of action according to Dr. Read:
… is to do nothing until he is sued on the resulting foreign default judgment
in the court of his own law district. He may lose his property, if any,
103 Voinet v. Barrett (1885), 55 LJ. Q.B. 39 (C.A.).
104 (1925), 29 O.W.N. 187, aff’g 28 O.W.N. 221, where Riddell, J. said (at p.
223): “…the defendant knowing that to attack the saisi he must enter an
appearance to the action, deliberately entered an appearance. He cannot be
heard to say that this general appearance should have a special effect only
and if the law is not as stated he entered an appearance being obliged to
do so. In either cases he is bound.” See also Tilton v. McKay (1874), 24 U.C.C.P.
94 (CA.).
105 Voinet v. Barrett (1885), 55 L.I.Q.B. 39 (C.A.); De Cosse, Brissac v. Rath-
(Ex.) 238; Poissant v. Poissant, [1941] 3
bone (1861), 6 H. and N. 301, 30 L..
W.W.R. 646 (Sask.).
‘ 0GVoinet v. Barrett (1885), 55 LJ. Q.B. 39 (C.A.).
No. 1]
RECOGNITION AND ENFORCEMENT
situated in the territory of the foreign court, but he may be able to resist
the execution of the foreign judgment against his property located
elsewhere; whereas if he does anything that amounts to a voluntary
appearance in the foreign action, according to the law of that court,
he will likely be held to have consented to its jurisdiction and will lose
that power of resistance. He should not even enter a protest against
the jurisdiction before judgment in the foreign court, unless he can
do so without entering a general appearance according to its procedural
law, although probably he can later safely appear and move to set
the judgment aside in the foreign court for want of jurisdiction –
providing he is careful to make no further move, such as to contest
an appeal from the decision on his motion. Possibly he may with
impunity appear in a foreign action and protest the jurisdiction if
property owned by him has been seized by the foreign court as basis
for its jurisdiction, and it is still barely possible that in certain circum-
stances his appearance to save his property which has been seized in
execution under the foreign judgment would be held to be involuntary.107
To treat a special appearance as a general appearance denies
the defendant an opportunity to be heard, and may indirectly deprive
him of property without due process of law.
In Richardson v. Allen 0 8 Beck 1. in a very illuminating dissenting
opinion has clarified the great confusion of thought that has crept
into many cases upon the subject.
1. A person who appears unconditionally as defendant in a foreign Court
having no jurisdiction over his person, but having jurisdiction over the
class of case in question, appears voluntarily and thereby submits
himself to the jurisdiction of the Court so that he cannot afterwards
object that the Court had not both statutory and international juris-
diction over him.
2. A person who appears by way of a conditional appearance merely
(without other objection to the jurisdiction of the Court), appears
voluntarily and thereby submits himself to the jurisdiction of the Court
both on the question of jurisdiction and (if that is decided against
him), the question of the merits, whether he defends on the merits
or not, so that he cannot afterwards object that the Court had not
both statutory and international jurisdiction over him.
3. A person who appears by way of a conditional appearance (which
in itself is a method of testing only the statutory jurisdiction of the
Court), but also protests in any appropriate way against
the inter-
national jurisdiction of the Court, but takes no other part in the case,
does not appear voluntarily, and does not submit himself to the juris-
diction of the foreign Court, and the Court in which the judgment
issued upon would hold the judgment to have been given without
jurisdiction.
107 Read, op. cit., p. 170.
103 (1916), 28 D.L.R. 134, (1915), 10 W.W.R. 720, 34 W.L.R. 606, 11 Alta L.R.
245 aff’g (1915), 24 D.L.R. 883, 31 W.L.R. 437.
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[Vol. 17
4. A person who appears and protests, as stated in the last paragraph,
but, though maintaining his protest, contests the case on the merits,
does not submit himself to the jurisdiction of the Court if his purpose
is to protect property which has already been seized by the foreign
Court; but so far as the decisions have gone up to the present time,
no other purpose in making the protest, e.g., to protect property which
he has or may expect to acquire within the jurisdiction of the foreign
Court from seizure under execution, will be effective to prevent the
nullification of the protest.
He concluded as follows:
.. I should be prepared to hold that where a plaintiff sues a defendant
in a foreign Court which has no territorial jurisdiction over him, but
has statutory jurisdiction over him, the defendant –
inasmuch as he
has no power to prevent the plaintiff doing so, and inasmuch as the
Court would naturally and quite properly refuse to pay any attention
to a protest founded only on the want of international jurisdiction –
is under no obligation to make any protest on that ground but may
appear and contest the merits and the statutory jurisdiction in the
hope of a favourable decision, no matter what his reason for so doing
may be, and that the plaintiff, having chosen the forum, is bound,
but the defendant, being there against his will, is not bound.
In the present case, however, the defendant did protest in the only
way open to him, namely, by defence; for the conditional appearance is
distinctly confined to the purpose of contesting the statutory jurisdiction
only.
Having made his protest he appears never to have withdrawn it, and
under these circumstances, at all events, he ought, in my opinion, to
be at liberty to contest the merits in the hope of success without being
bound in the event of failure …
In the present case, however, it does not appear that the defendant
did contest the merits beyond merely alleging a defence on the merits
along with his protest against the international jurisdiction of the
Court, but it does not appear that he ever took any further part in
the action. The burden of proving submission is on the plaintiff.
A defendant who appears only to protest against the jurisdiction
of the foreign court cannot be said to have submitted to its juris-
diction.
Sometimes, by virtue of the appearance, the jurisdiction of the
court will not only attach to claims stated in the original complaint
but also to claims stated by the plaintiff in his amended complaint.
As respects the form of appearance, it need not be made in
person; it can be made by a barrister, counsellor, or solicitor,109
lo9As to whether a solicitor had any authority to enter an appearance, see
McLean v. Shields (1885), 9 O.R. 699 (C.A.) or had any instructions: Beaty v.
Cromwell (1883), 9 P.R. 547.
No. 1]
RECOGNITION AND ENFORCEMENT
and will be considered valid if the person actually appearing has
been properly and duly authorized.10
While proof of the appearance may be made by the plaintiff,
usually the burden of proof lies on the defendant to show that he
did not voluntarily appear. As the foreign judgment is presumed
to be valid, an insufficient negation of appearance will be fatal to
the defendant’s cause.
c) Where the defendant had contracted to submit himself to
the forum in which the judgment was obtained.
A person, corporation or partnership, though not otherwise
subject to the jurisdiction of the foreign court, may contract to
submit to the personal jurisdiction of that court.”‘
Consent to the exercise of jurisdiction may also result from the
doing of certain acts.112
The contract to submit to the jurisdiction in personam of the
foreign court must be either express or necessarily implied from
the facts, it cannot arise by implication of law.”3
Where the defendant in the original court was not subject to
the jurisdiction of that court unless he had contracted to submit
himself to it, and an action is brought on the foreign judgment,
the plaintiff must prove that the defendant did so contract 114 once
11O Bugbee v. Clergue (1899), 27 O.A.R. 96, at pp. 98, 107-8, aff’d (1900) 31
S.C.R. 66. As to whether a public trustee as administrator of the estate of a
deceased had the power to contract to submit himself to the judgment of a
foreign court, see Mattar and Saba v. Public Trustee (1952), 5 W.W.R. (N.S.)
29, [1952] 3 D.L.R. 399 (Alta CA.).
111 In general see Hughes v. Sharp (1968), 66 W.W.R. 103 (B.C.) (Cognovit
actionem); Carveth v. Railway Asbestos Packing Co. (1913), 4 O.W.N. 872
(Election of Domicile); Gifford v. Calkin (1911), 45 N.S.R. 277; Hart & Son,
Ltd. v. Furness, Withy Co. Ltd. (1904), 37 N.S.R. 74; Metropolitan Trust &
Savings Co. v. Osborne (1909), 14 O.W.R. 135, affd (1910), 16 O.W.R. 226 (cogno-
vit actionem); Manitoba Windmill & Pump Co. Ltd. v. McLelland (1911), 16
W.L.R. 283, 4 Sask. L.R. 127, varied 4 Sask. L.R. 500 (C.A.); Harbican v.
Kennedy, [1937] 2 D.L.R. 541 (Man.); New Hamburg Mfg. Co. v. Shields (1906),
4 W.L.R. 307, 16 Man. R. 212; Ritter v. Fairfield (1900), 32 O.R. 350 (C.A.)
(warrant of attorney); Mattar and Saba v. Public Trustee (1951), 3 W.W.R.
(N.S.) 287 aff’d [19521 3 D.L.R. 399, (1952), 5 W.W.R. (N.S.) 29 (Alta C.A.).
(Ex.) 15; Feyerick v.
112Copin v. Adamson (1875), L.R. 1 Ex. D. 17, 45 L..
Hubbard (1902), 71 L.. (K.B.), 509, per Walton J., at pp. 510-512.
113 Read, op. cit., p. 176. Hart & Son Ltd. v. Furness, Whithy Co. Ltd. (1904),
37 N.S.R. 74; Mattar and Saba v. Public Trustee (1952), 5 W.W.R. (N.S.) 29,
[1952] 3 D.L.R. 399 (Alta C.A.); Read, Consent as a Basis of Jurisdiction in
personam of a Foreign Court [1931] 1 D.L.R. 1.
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the defence is set up that the judgment is a nullity because the
defendant did not submit to the jurisdiction of that court.
Where in a note the defendant has authorized any attorney to
appear for him and confess judgment without process in favour
of the holder of the note, and such judgment has been regularly
obtained according to the foreign law, he is bound by it.115
It is not to be implied that a defendant has contracted to submit
to the jurisdiction of a foreign court from the mere fact that he
has made a promissory note payable in the foreign country. 16
Similarly an agreement to submit to the jurisdiction of a foreign
court is not to be implied merely from the fact that the defendant
to the action therein had entered into a contract in the foreign
country or into a contract intended to be performed therein. If
an obligation to submit to the foreign court’s jurisdiction exists
it must be by virtue of an express agreement. It cannot arise merely
by implication. 117 However, a provision in a contract entered into in
Quebec stating that the parties “elect domicile” at the place of the
contract amounts to a submission to the jurisdiction of Quebec
courts.
1 18
A covenant in a mortgage that it is to be enforced in the manner
provided by the statutes of the state in which the land is situate,
does not seem to be such an agreement as will confer upon the
courts of that state a jurisdiction which they would not otherwise
possess. 119
In Copin v. Adamson 120 it was held that a person, by becoming
a shareholder in a company whose articles of association expressly
provide that shareholders are amenable to the jurisdiction of the
114Mattar and Saba v. Public Trustee, ibid.
115 Metropolitan Trust and Savings Co. v. Osborne (1909), 14 O.W.R. 135,
aff’d (1910), 16 O.W.R. 226, 1 O.W.N. 785; In Ritter v. Fairfield (1900), 32 O.R.
350 (C.A.), a judgment recovered on a warrant of attorney in Pennsylvania
was held valid; see also Harbican v. Kennedy, [1937] 2 D.L.R. 541 (Man.);
Hughes v Sharp (1968), 66 W.W.R. 103 (B.C.); New Hamburg Mfg. Co. v. Shields
(1906), 4 W.L.R. 307, 16 Man. R. 212.
116 Gif-ord v. Calkin (1911), 45 N.S.R. 277, 9 E.L.R. 498 reversing 9 E.L.R.
384 (CA.).
117Mattar and Saba v. Public Trustee (1952), 5 W.W.R. (N.S.) 29,
[1952]
3 D.L.R. 399, aff’g (1951) 3 W.W.R. (N.S.) 287 (Alta C.A.), see also Wedlay v.
Quist (1953), 10 W.W.R. (N.S.) 21 affirming 9 W.W.R. (N.S.) 527 (Alta CA.).
11s Carveth v. Railway Asbestos Packing Co. (1913), 4 O.W.N. 872.
119 Dakota Lumber Co. v. Rinderknecht (1905), 2 W.L.R. 275, 6 Terr. L.R. 210,
120 (1874), L.R. 9 Ex. 345; (1875), L.R. 1 Ex. D. 17, 45 L..
reversing 1 W.L.R. 481 (CA.).
(Ex.) 15.
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RECOGNITION AND ENFORCEMENT
courts of the country of incorporation in any action concerning the
rights or obligations of the shareholders, submits himself to the
jurisdiction of these courts. The articles of association constitute
an agreement on the part of every shareholder to be bound by
a judgment rendered by these courts. However a person does not,
by the mere fact of becoming a shareholder in a foreign company,
submit himself necessarily to the jurisdiction of the foreign courts.
This equally applies to a partnership. 121
If the statutory law of the state of incorporation provides for
the submission of the shareholders to the jurisdiction of the courts
of that state, a judgment rendered by these courts should be bind-
ing on the shareholders.
In Allen v. Standard Trusts Company 122 an action was brought
in Manitoba to enforce a liability imposed by the laws of Minne-
sota on shareholders of an insolvent company incorporated in that
state. The court held that the non resident shareholder was subject
to these laws as he had accepted the status of shareholder in this
company as determined by the certificate of incorporation and in
addition had agreed to submit himself in common with all other
shareholders to the jurisdiction of the Minnesota courts and to
be bound by their process for the relief of creditors, as set forth
in the statutes of the state, in the event of the company becoming
insolvent. The foreign assessment order was binding on the execu-
tors of the deceased non resident shareholder.
The appointment of a resident agent to carry on the business
of a corporation or partnership and to bring or defend suits with
respect to it, amounts to consent to be sued there. A judgment
against the shareholders or partners upon service on the agent
binds them and is valid extraterritorially. 12 3
A party may contract that actual notice of proceedings against
him in a foreign court need not be given him in order to render
him amenable to the jurisdiction of that court. 24 It is also possible
to contract to be bound by substituted service.
A waiver or acceptance of service of process in an action, though
given by a defendant outside the state, may confer jurisdiction over
him when the waiver or acceptance of service of process can be
121Copin v. Adamson, ibid and Emanuel v. Symon, [1908] 1 K.B. 302.
122 (1920), 57 D.L.R. 105, [1920] 3 W.W.R. 990, 30 Man. R. 594, aff’g (1919),
49 D.L.R. 399, [1919] 3 W.W.R. 974.
123 Bank of Australasia v. Harding (1850), 19 L.J.C.P. 345; see also Bank of
Australasia v. Nias (1851), 16 Q.B. 717.
124 Vallde v. Dumergue (1849), 4 Ex. 290, 18 LJ. Ex. 398.
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construed as an express consent to the exercise of jurisdiction of
the foreign court.1 25
The danger in the case of a contract to submit is that the
defendant is generally forced to enter into the contract. Since the
foreign judgment is not open to an inquiry into the merits of the
case, great injustice may result to him.
Reciprocity –
Substantial connection
In Swaizie v. Swaizie, 2 Meredith, J. said:
… with what may seem some inconsistency, English courts sometimes
assert a jurisdiction in themselves which they deny the right of a foreign
tribunal to exercise in like circumstances.
For instance in Ontario, rule 25 of the Supreme Court confers
jurisdiction on the domestic courts to entertain actions which they
have no jurisdiction at common law to entertain. A judgment ren-
dered by a court who has acquired jurisdiction over the defendant
in accordance with the provisions of this rule will be valid locally
but will have no extraterritorial effect. As pointed out by Armour,
C.J. no province can,
… pass laws having any operation outside its own territory, and no
tribunal established by (it) can extend its process beyond its own territory
so as to subject either persons or property to its decisions.
Every exertion of authority of this sort beyond this limit is a mere
nullity, and incapable of binding such persons or property in any other
tribunal.127 (Story on Conflict of Laws, 8th Ed. sec. 539).
Thus, Canadian courts discriminate against foreign courts by
claiming jurisdiction in more cases than they concede to them.
There is no reason why, as a first step, our courts should not en-
large the grounds of recognition of the international jurisdiction
of foreign courts on the basis of reciprocity. In other words Cana-
dian courts should recognize a foreign judgment
in personam
125 See for instance Ritter v. Fairfield (1900), 32 O.R. 350 (CA.), at p. 357
where the defendant had waived service and notice by the terms of a warrant
of attorney appended to a promissory note: “Judgment by confession is one
instance of a party voluntarily submitting himself to the jurisdiction of
the court”; also Metropolitan Trust & Savings Co. v. Osborne (1909), 14 O.W.R.
135, aff’d (1910), 16 O.W.R. 266 (promissory note containing a warrant of
attorney to confess judgment without process) and Tilton v. McKay (1874),
24 U.C.C.P. 94 (CA.) (waiver of personal service).
126 (1899), 31 O.R. 324, at pp. 330-331.
127Deacon v. Chadwick (1901), 1 O.L.R. 346, at p. 351. See also McCullough
v. Defehr & Dyck (1909), 2 Sask. L.R. 303; Richer v. Borden Farm Products Co.
Ltd. (1921), 49 O.L.R. 172, at p. 174. Cf. Wedlay v. Quist (1953), 10 W.W.R.
(N.S.) 21 (Alta C.A.), pp. 25-26.
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RECOGNITION AND ENFORCEMENT
rendered by a court that exercised jurisdiction on a basis similar
to that exercised by the enforcing court in similar circumstances.
There does not seem to be any compelling reason against re-
cognizing a jurisdiction which the forum itself claims. In Travers
v. Holley,2 8 it was declared that what entitles an English court to
assume jurisdiction should be equally effective in the case of a
foreign court. Where there is in substance reciprocity “it would
be contrary to principle and inconsistent with comity if the courts
of England would refuse to recognize a jurisdiction which mutatis
mutandis they claim for themselves”. Reciprocity is designed to
enlarge the grounds upon which English courts will recognize the
jurisdiction of foreign courts. The English Court of Appeal recog-
nized a foreign divorce decree upon the principle that it had been
granted by a court using a special statutory basis of jurisdiction
comparable to that possessed by statute by the courts of the forum.
This decision does not, however, substitute a new basis for the
recognition of foreign judgments. The already existing grounds of
jurisdiction of the foreign courts recognized by English courts are
not superseded. The English rules for the recognition of the juris-
diction of foreign courts are only extended to cover grounds similar
to those resorted to in domestic cases. In 1958, in Robinson-Scott
v. Robinson-Scott 129 the principle of Travers v. Holley was refined.
What matters is whether on analogous facts, the English court
could have taken jurisdiction: “It is not necessary that the foreign
statutory grounds of jurisdiction be substantially similar to the
English ones. It is sufficient that facts exist which would enable
the English courts to assume jurisdiction”.
Travers v. Holley was approved by the House of Lords in Indyka
v. Indyka.130 However, their Lordships were of the opinion that the
rule of that case did not amount to more than a general working
principle that changes in domestic jurisdiction should be taken
into account by the courts in decisions as to what foreign decrees
they will recognize.131 They searched for a more rational approach
to the problem of jurisdiction and came to the conclusion that the
real basis of the jurisdiction of a foreign court to grant a decree
128 [1953] P. 246, [1953] All E.R. 794 (C.A.), at p. 800; see also Denning L.J.
in Re Dulles, [1951] Ch. 842, at p. 851; Kennedy, “Reciprocity” in the Recogni-
tion of Foreign Judgments (1954), 32 Can. Bar Rev. 359; Kennedy, Recognition
of Judgments in personam: The Meaning of Reciprocity (1957), 35 Can. Bar
Rev. 123.
129 [1958] P. 71.
130 [19673 3 W.L.R. 510.
131 Lord Wilberforce, at p. 559.
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of divorce that will be recognized in England is the existence of
a real and substantial connection between the parties obtaining the
decree and the country of the court that granted it.
This principle of real and substantial connection is a very sound
one, it goes much beyond reciprocity since the foreign court may
have international jurisdiction in the eyes of the English court in
a case in which the English court would not be able to exercise a
similar jurisdiction.
Applied to foreign judgments in personam this principle would
still leave the Canadian courts free to determine whether the de-
fendant had a real and substantial connection with the foreign
court. Furthermore it may not make it possible to recognize the
jurisdiction of a foreign court based on grounds similar to those
found in rule 25 of the Supreme Court of Ontario whereas reci-
procity would. At least the principle of real and substantial con-
nection disposes of the objection that since the jurisdiction of
Canadian courts to order service ex juris is discretionary “so also
(if the suggested extension of the principle of Travers v. Holley
had prevailed) would have been its recognition of foreign judgments
based on similar jurisdictional grounds”. 32
Travers v. Holley and Indyka v. Indyka are decisions involving
judgments in rem in matters affecting matrimonial status. They
have been followed in matrimonial cases but not in judgments in
personam.
It seems that, for instance, the Ontario courts could concede
to the courts of foreign countries the same rights of jurisdiction
which they claim for themselves under rule 25 so long as the
foreign legislation involved does not differ in substance and spirit
from its Ontario equivalent or the facts are such, that they would
have enabled the Ontario court to exercise jurisdiction. This view is
supported by the remarks of Denning, L.J. in Re Dulles 133 in his
analysis of Harris v. Taylor.134 The learned judge said:
… Those rules correspond with the English rules for service out of the
jurisdiction contained in Ord. 11; and I do not doubt that our courts
would recognize a judgment properly obtained in the Manx courts for
a tort committed there, whether the defendant voluntarily submitted to
the jurisdiction or not; just as we would expect the Manx courts in a
converse case to recognize a judgment obtained in our courts against a
resident of the Isle of Man, on his being properly served out of our
jurisdiction for a tort committed here.
132 Dicey, Morris, op. cit., 8th ed., 1967, p. 986.
133 [1951] Ch. 842, at p. 851.
134 [1915] 2 K.B. 580.
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RECOGNITION AND ENFORCEMENT
The opposition to this view has generally been along the lines
of the often quoted remark of Lord Ellenborough:
Can the Island of Tobago pass a law to bind rights of the whole world?
Would the world submit to such an assumed jurisdiction? 135
The traditional approach of the courts has been that the power
of the foreign jurisdiction to legislate or exercise judicial control
over persons outside its own territorial limits is in direct conflict
with the principle of territoriality. All jurisdiction is properly ter-
ritorial and extra territorium jus dicenti, impune non paretur.1 6
Thus one may wonder whether Travers v. Holley is a sound deci-
sion, especially where English courts are given discretionary powers
to issue writs or notices for service out of the jurisdiction. Should
one condone a progressive abandonment of the common law rule
that proceedings in personam are against only those persons who
are within the territorial limits of our courts? Such an attitude
would appear to be in direct conflict with common law principles
of due process and natural justice, especially where it results in
recognizing jurisdiction based solely on a service of a writ or
notice served out of the jurisdiction. (Or based upon a writ served
on the registrar or superintendent of motor vehicles or secretary
of state.)
It has been suggested by Dr. Kennedy 137 that an extension of
the grounds of jurisdiction of foreign courts on the basis of reci-
procity is a sound principle in federal states, especially in the field
of torts. He says:
At common law, an action could not be brought against an absent
defendant for a tort committed within the jurisdiction. When the rule
was changed domestically, it was not thought until recent reciprocity
discussions that a judgment in such action would have validity abroad.
Today with the development and rapidity of transportation it
may be desirable that the courts of the place where the tort was
committed and where probably most of the witnesses are located
135 Buchanan v. Rucker (1808), 9 East 192, at p. 194.
l36 Sirdar Gurdyal Singh v. The Rajah of Faridkote, [1894] A.C. 670, at p.
683; see also Schibsby v. Westenholz (1870), L.R. 6 Q.B. 155, where Lord Black-
burn said, at p. 159: “…if the principle on which foreign judgments were
enforced was that which is loosely called ‘comity’, we could hardly decline
to enforce a foreign judgment given in France against a resident in Great
Britain under circumstances hardly, if at all, distinguishable from those under
which we, mutatis mutandis, might give judgment against a resident of France;
but it is quite different if the principle be that which we have just laid down
[the doctrine of obligation]”.
137 Kennedy, “Reciprocity” in the Recognition of Foreign Judgments (1954),
32 Can. Bar Rev. 359, at p. 379.
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should have jurisdiction, and that any judgment arising from the
new jurisdiction should be enforceable everywhere, especially in
view of the fact that most of these claims are defended by insur-
ance companies with little hardship on a foreign defendant. This
author also maintains that in the field of contract the present area
of rule 25 in Ontario or Order XI in British Columbia 13 8 is very rea-
sonable and could easily be extended to foreign courts. It seems
that, besides statutory grounds of jurisdiction, reciprocity could
also be extended to cover common law grounds of jurisdicttion.
As jurisdiction has always been the most important obstacle
to recognition of foreign judgments, there is not doubt that the
principle of jurisdictional reciprocity more than that of real and
substantial connection can be an excellent method for facilitating
the recognition and enforcement of foreign judgments in the forum.
This principle should at least be followed in federal states where
statutory as well as common law jurisdictional principles are not
substantially different. It may even result in an indirect unification
of rules of jurisdiction without the usual obstacles and inconven-
iences of a direct unification. To adhere strictly to the principles
enunciated over sixty years ago in Emanuel v. Symon 139 is a sign
of backwardness and not in the tradition of the Anglo-Canadian
system. Whether the rule should be extended to judgments ren-
dered outside Canada is a more delicate question.
Judgments in rem
Power over the thing that is the subject-matter of the action
is an essential factor for the exercise of jurisdiction in rem con-
cerning that thing.
The courts of a foreign state or sister province have exclusive
jurisdiction to give a judgment in rem concerning any immovable
situated within that state or province.
Conversely they have no such jurisdiction with respect to any
immovable situated elsewhere. 140
138 Ont. r. 25 (1) (e); B.C. 0. XI (1) (e).
139 [1908] 1 K.B. 302.
140Duke v. Andler, [1932] S.C.R. 734, [1932] 4 D.L.R. 529 reversing [1932] 1
W.W.R. 257, 45 B.C.R. 96, [1932] 2 D.L.R. 19, which varied 43 B.C.R. 549, [1931]
3 D.L.R. 561; see also Burchell v. Burchell (1926), 58 O.L.R. 515, at p. 525-6; Re
Mills (1912), 21 O.W.R. 887, 3 Q.W.N. 1036, (1912), 3 D.L.R. 614 (Ont.); Haspel
v. Haspel, [1934] 2 W.W.R. 412 (Alta), where Ewing, J. said, at p. 415: “The
Courts of the State of Washington have no right to deal with the title to real
property within the jurisdiction of the Courts of Alberta”; see also Chassey
No. 1]
RECOGNITION AND ENFORCEMENT
The courts of a foreign state or province also have general
jurisdiction in rem concerning a movable located in that state or
province but have no such jurisdiction when it is located else-
where.’ 4 ‘ Dr. Read 142 points out that there are two cases that seem
to support the view that a foreign court has no jurisdiction in rem
concerning a movable when it is taken into the territory of that
court against the owner’s wish “although in both cases the deci-
sion was expressly rested upon a different ground”. 143 He feels that
in the case of a movable, a foreign court should not be able to
destroy ownership without the consent of the owner as “owner-
ship is not merely a nexus between a person and all the world
concerning a thing; it is primarily a static relation between a
person –
and the thing owned”. 144
the owner –
In Jones v. Smith 145 the Ontario court relying on in re Trufort 146
held that where a court of the country of the domicile of the de-
ceased adjudicates upon the distribution of his movables, that
adjudication is binding upon the whole world irrespective of the
situs of these movables. In that case the situs of the movables as
well as the domicile of the deceased were located within the terri-
tory of the foreign court.
In re Hickson,’4 7 it was held that the rights conferred upon the
Committee of a lunatic by the courts of his domicile with respect
to his movables wherever situated are entitled to universal recog-
nition. These cases indicate that in certain types of judgments in
rem concerning movables international jurisdiction may be based
either on the actual situs of the movables or on the domicile of
and Wolbert v. May, [1921] 1 W.W.R. 69, 29 B.C.R. 83, aff’d [1922] 2 W.W.R.
225, 68 D.L.R. 427 (Can.); Re Trustee Act, Re a Certain Lot in New Westminster
District (1960), 32 W.W.R. 388 (B.C.). A foreign injunction will not be recog-
nized as to land within another jurisdiction; De Venne v. Warren (1910), 45
N.S.R. 8, 8 E.L.R. 453.
146 (1887), 36 Ch. D. 600.
147 (1927), 61 O.L.R. 180.
141 Burn v. Bletcher (1863), 23 U.C.Q.B. 28 (C.A.); see also Buffalo & Lake
Huron Railway Co. v. Hemmingway (1863), 22 U.C.Q.B. 562, at p. 567 (C.A.);
Joseph F. Michado v. The Ship “Hattie & Lottie” (1904), 9 Ex. C.R. 11; Van
Every v. Grant (1862), 21 U.C.Q.B. 542 (CA.).
142 Read, op. cit., p. 140.
143 Singer Sewing Machine Co. v. McLeod (1888), 20 N.S.R. 341; Houghton v.
May (1910), 17 O.W.R. 750.
144 Read, op. cit., p. 140.
145 (1925), 56 O.L.R. 550; also Senkiw et al. v. Muzyka et al. (1967), 61 W.W.R.
58, 65 D.L.R. (2d) 622, aff’d (1969), 4 D.L.R. (3d) 708 (CA.), aff’d (1970), 72
W.W.R. 314 (S.C.C.); Ostrander v. Houston (1915), 8 Sask. L.R. 132, 8 W.W.R.
367.
McGILL LAW JOURNAL
[Vol. 17
the owner. Actually, quite often the situs and the domicile of the
owner will be the same since some movables are deemed to be
located in the state where the owner is domiciled. As pointed out
by Dr. Read:
If the court of the domicile is to be allowed a concurrent jurisdiction
in rem over movables in these two instances, the justification for the
exception to the territorial principle is probably to be found in a greater
convenience in dealing with the movables of the owner as a unit.” 148
convenience in dealing with the movables of the owner as a unit.148
Competence of the foreign court under its own law
Once it has been established that, according to the rules of
conflicts of the forum, the foreign court had international jurisdic-
tion over the parties and over the subject matter, should there be
an inquiry into the competence of the foreign court under its own
law?
In Pemberton v. Hughes, a case involving a foreign decree of
divorce, it was held that the foreign court must have had juris-
diction over the subject-matter and over the parties before its
decree can be recognized in England.149 This does not seem to
mean that in practice there is any closer examination. Actually,
Pemberton v. Hughes, usually is cited for the proposition that an
English court will not inquire into the irregularities of procedure
of the foreign court, even though their effect was to render the
decree of dissolution of marriage a nullity under the local law.
In this case Lindley, M.R. said: 110
Assuming that the defendants are right, and that the decree of divorce
is void by the law of Florida, it by no means follows that it ought to be
so regarded in this country. It sounds paradoxical to say that a decree
of a foreign court should be regarded here as more efficacious or with
more respect than it is entitled to in the country in which it was pro-
nounced. But this paradox disappears when the principles on which
English courts act in regarding or disregarding foreign judgment are
borne in mind. If a judgment is pronounced by a foreign court over
persons within its jurisdiction, and in a matter with which it is compe-
tent to deal, English courts never investigate the propriety of the pro-
ceedings in the foreign court, unless they offend against English views
of substantial justice. Where no substantial justice, according to English
notions is offended, all that English courts look to is the finality of the
judgment and the jurisdiction of the Court, in this sense and to this
extent-namely, its competence to entertain the sort of case which it did
deal with and its competence to require the defendant to appear before
148 Read, op. cit., p. 144.
149 [1899] 1 Ch. 781.
150 [1899] 1 Ch. 781, at p. 790-791.
No. 1]
RECOGNITION AND ENFORCEMENT
it. If the Court had jurisdiction in this sense, and to this extent, the
Courts of this country never inquire whether the jurisdiction has been
properly or improperly exercised, provided always that no substantial
injustice, according to English notions, has been committed.
There is no doubt that the Courts of this country will not enforce
the decisions of foreign Courts which have no jurisdiction in the sense
above explained, i.e., over the subject-matter or over the persons brought
before them … But the jurisdiction which alone is important in these
matters is the competence of the court in an international sense –
i.e.,
its territorial competence over the subject-matter and over the defendant.
Its competence or jurisdiction in any other sense is not regarded as
material by the Courts of this country.
In this case the Florida court was internally competent to deal
with a case of divorce. Pemberton v. Hughes was followed
in
C. v. C.’51 There, the Illinois court having had international juris-
diction to grant a divorce, as the defendant was domiciled in that
state, and also jurisdiction over the subject-matter, the Ontario
Court refused to inquire as to whether the foreign court had
made a mistake by not inquiring into the residence of the parties
prior to the filing of the petitions. On the other hand, in Castrique
v. Imrie1 52 which also involved a judgment in rem, Blackburn J.
considered relevant:
… whether the sovereign authority of that State has conferred on
the Court jurisdiction to decide as to the disposition of the thing, and
the court has acted within its jurisdiction.
These words could be taken as an indication that the foreign court
must have been competent according to its own law. However,
Dr. Morris 1 3 maintains that:
A foreign judgment cannot be impeached in general, on the ground
that the court which gave it was not competent to do so according to
the law of the foreign court concerned.
Thus, in Canada, in an action on a New York judgment rendered
by an inferior court, it was held that it was not necessary to aver
that the cause of action arose within the jurisdiction of that court
as determined by its local law. 54 On another occasion the court
was of the opinion that the enforcing court will assume that the
foreign court acted within the jurisdiction conferred to it by the
foreign law.’ 155
151 (1917), 39 O.L.R. 571, at p. 574.
152 (1870), L.R. 4 H.L. 414, at p. 429.
153 Dicey, Morris, op. cit., rule 165 (2).
15 4 Prentiss v. Beemer (1847), 3 U.C.Q.B. 270.
15 Meagher v. Aetna Insurance Co. et al (1873), 20 Gr. 354, at p. 372; see also
McPherson et al v. McMillan (1846), 3 U.C.Q.B. 30, at p. 33.
McGILL LAW JOURNAL
[Vol. 17
In the case of a judgment in personam, Vanquelin v. Bouard
is usually cited as supporting this rule.156
In this case, it was pleaded to a declaration on a judgment
proceeding from a French commercial court for the amount of
certain bills of exchange that the original action had been brought
in the wrong court according to the French rules of procedure,
because the defendant was not a trader when he accepted the
bills, and because the bills falsely purported to be drawn at a
place where in fact they were not drawn and where the defendant
did not have his domicile. The plea was held bad on demurrer.
Chief Justice Earle said:
But I am of the opinion that the judgment of a foreign court is valid
if the court has jurisdiction over the person and over the subject-matter
of the action; and it seems to me upon this plea that the court of the
Tribunal de Commerce had jurisdiction over the subject-matter of the
suit in which the judgment vras obtained, viz.,
the liability of the
acceptor of a bill of exchange, and that if it were a matter of defense
that the defendant was not a trader or not resident within the juris-
diction of the court, it was a matter which ought to have been set
up by way of defence in that court, and cannot avail the defendant
in an action upon the judgment here.
As the French court did not lack internal jurisdiction since it
was competent to deal with the sort of case that it did deal with,
it is doubtful that it affords a good support for the rule mentioned
above.
It seems that in the case of a foreign judgment in personam,
its validity should depend upon possession by the court pronouncing
it, not only of international but also of local jurisdiction ratione
materiae. Therefore, the enforcing court should be able to examine
the statutory background of the foreign court in order to determine
whether it had been given jurisdiction over the general subject-
matter of the action and the parties but not further. This amounts
only to a control over the foreign court by an inquiry whether
it exceeded the jurisdiction conferred upon it by municipal law.
It
judgments
which are irregular in the foreign country but are valid there
until set aside, and judgments which are null and without legal
effect in the foreign country because their rendition is beyond
the power of the foreign court. Pemberton v. Hughes and Vanquelin
v. Bouard seem to belong to the first category, although in the
former case the court assumed the Florida judgment to be void.
is then possible to draw a distinction between
156 (1863), 15 C.B. (N.S.) 341, at p. 368.
No. 11
RECOGNITION AND ENFORCEMENT
In most cases the foreign judgment will be irregular rather than a
nullity.
So long as the foreign judgment is rendered by a court having
international jurisdiction and local jurisdiction over the subject-
matter it should be recognized by Canadian courts, even if the
venue is not correct, because our courts are not courts of appeal
of foreign decisions. If the foreign judgment is void where it was
rendered it should not be recognized and enforced. A court cannot
recognize that which does not exist at law. A distinction must be
made between incorrect use of an existing power and the usurpation
of a nonexisting power.
To sum up, where a foreign court possesses jurisdiction over
the parties and the subject-matter, in other words, has an existing
power of jurisdiction, the enforcing court will not inquire into the
correctness of the use of that power, unless the proceedings are
contrary to Canadian views of substantial justice.
In 1956, at the Conference of Commissioners on Uniformity of
Legislation in Canada, Dr. Read 157 stated that a foreign money
judgment rendered in a court which had no jurisdiction in the
local sense, that is no competence to adjudicate on the cause of
action or concerning the person of the defendant, should be treated
as a nullity although the court had international jurisdiction. The
foreign court must have had jurisdiction under its own law and
under the conflict rules of the enforcing court. His proposal was
incorporated in section 3(6) of the Reciprocal Enforcement of
Judgments Act adopted by most provinces of Canada.
3(6) No order for registration shall be made if it is shown by the
judgment debtor to the court to which application for regis-
tration is made that,
(a) the original court acted either
(i) without jurisdiction under the conflict of laws rules
of the court to which application is made, or
(ii) without authority, under the law of the original court,
to adjudicate concerning the cause of action or subject-
matter that resulted in the judgment or concerning the
person of the judgment debtor or without such juris-
diction and without such authority.
157 1958, Proceedings, p. 90. E.g. Alberta, SA., 1958, c. 33, s. 3(6) and section
IV, infra.
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[Vol. 17
2) The foreign judgment must be final and conclusive
It is well settled that an action will not lie on a foreign judgment
that is not final and conclusive.’ 1 The enforcing court must examine
whether according to the law of the country where the judgment
was rendered it is res judicata between the parties. Has the judg-
ment determined all possible controversies between them? Is it
still subject to be reopened, reviewed and modified by the same
court from which it issued? What is the effect of an appeal to a
different court? These are some of the questions which must be
dealt with here.
If a judgment is to be considered final only when it leaves
nothing for future determination or ascertainment as a prerequisite
to effective execution and is not subject to subsequent recission,
review or modification by any court, it follows that any authorized
procedure of review could prevent the recognition and enforcement
of a foreign judgment in the forum.
Canadian and English courts have distinguished between a
remedy given by the court rendering the judgment and one given
by a different court.
The finality and conclusiveness’of a foreign judgment is presumed
in favour of a plaintiff who relies on it unless it is put in issue
by the defendant’s pleading.15 9
Remedy given by the same court that rendered the judgment
In Nouvion v. Freeman'”0
it was held that a foreign judgment
rendered in proceedings of a summary nature will not be given
any effect in England where it may be nullified or altered in later
plenary proceedings between the same parties in the same court.
In this case a “remate” judgment was obtained upon summary
158 Nouvion v. Freeman (1887), 37 Ch. D. 244 (CA.), aff’d (1889), 15 App. Cas.
1 (H.L.); Gauthier v. Routh (1843), 6 O.S. 602, at pp. 607-608; Wood v. Wood
(1916), 37 O.L.R. 428, at p. 431; Maguire v. Maguire (1921), 50 O.L.R. 100, at
p. 103; McMillan v. Ritchie (1851), 2 Allen (N.B.) 242, at p. 253; Graham v.
Harrison (1889), 6 Man. R. 210; Hadden v. Hadden (1899), 6 B.C.R. 340, at p.
350; Eastern Trust Co. v. MacKenzie Mann & Co. (1916), 10 O.W.N. 445; Ashley
v. Gladden, [1954] 4 D.L.R. 848 (CA.), [1954] O.W.N. 558; McIntosh v. McIntosh,
[1942] O.R. 574, [1942] 4 D.L.R. 70 (CA.).
159 Smith v. Smith, [1923] 2 W.W.R. 389, 17 Sask. L.R. 203, [1923] 2 D.L.R. 896
(CA.); in Smith v. Smith (1954), 13 W.W.R. (N.S.) 207, [1955] 1 D.L.R. 229
(B.C.), it was held that “The onus is on the plaintiff to establish that the
[alimony] orders are final” once the defendant denies their finality. As to
proof that the judgment is final see Whitla v. McCuaig (1891), 7 Man. R. 454.
160 (1887), 37 Ch. D. 244 (CA.), aff’d (1889), 15 App. Cas. 1.
No. 1]
RECOGNITION AND ENFORCEMENT
proceedings in a Spanish court for the recovery of a debt.16 An
action was brought in England on the “remate” judgment before
the time for appeal or for plenary proceedings had elapsed. The
House of Lords rejected the action on the ground that the judgment
was not final since it could not be enforced against a request
of the defendant for rehearing. The Spanish judgment was not
res judicata with regard to the parties and did not extinguish the
cause of action. The House of Lords applied the principle that if
a judgment is subject to modification by the original court, the
enforcing court cannot know the extent of the debtor’s obligations. 6 2
Lord Watson said: 16
… no decision has been cited to the effect that an English Court is bound
to give effect to a foreign decree which is liable to be abrogated or
varied by the same Court which issued it. All the authorities cited appear
to me, when fairly read, to assume that the decree which was given
effect to had been pronounced causd cognit&, and that it was unnecessary
to inquire into the merits of the controversy between the litigants,
either because
these had already been investigated and decided by
the foreign tribunal, or because the defendant had due opportunity of
submitting for decision all the pleas which he desired to state in defence.
In order to its receiving effect here, a foreign decree need not be final
in the sense that it cannot be made the subject of appeal to a higher
Court; but it must be final and unalterable in the Court which pronounced
it; and if appealable, the English courts will only enforce it subject
to conditions which will save the interests of those who have the right
to appeal.
A foreign judgment is not final if the judgment creditor must ask
the original court to make an order for its enforcement, especially
16 Besides ordinary judicial proceedings, most legal systems provide for
some kind of summary proceedings in certain specified cases. Although the
judgment is executory on these proceedings, it is subject to reversal on appeal
before the same tribunal. The action which is based on a legal document of
indebtedness is brought before the president of the tribunal. The defendant
can set up certain limited defenses but cannot dispute the validity of the
contract under which the debt arose. Either party, before execution based on
the “remate” judgment is served, may be allowed to continue within a certain
time and in the same court in respect of the same matter, ordinary plenary
proceedings in which all defenses are available and in which the “remate”
judgment has no effect whatsoever. A judgment rendered in plenary pro-
ceedings renders the “remate” judgment inoperative. The “remate” judgment
may be enforced at once upon giving security, although an appeal or plenary
proceedings are pending. If plenary proceedings are not taken within a certain
stipulated time, the “remate” judgment becomes conclusive and binding upon
the parties.
162 See also Gauthier v. Routh (1843), 6 O.S. 602 (C.A.); Graham v. Harrison
(1889), 6 Man. R. 210.
163 (1889), 15 App. Cas. 1, at p. 13.
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[Vol. 17
where the original judgment may, by this procedure, become liable
to abrogation or alteration.'” If the foreign court retains the power
to vary it in respect of the sums sued for, such judgment is not
final. 1 5
An interlocutory or provisional order for the payment of money
into court is not final. This includes an interlocutory or collateral
order for the payment of costs. 6 Of course, where the order for
the payment of costs is part of the final decree of the foreign court
which disposes of the whole matter under dispute, the judgment
will be deemed final.167
The foreign judgment must be more than an order which merely
requires something to be done, pending the prosecution of the
action. It is very important to emphasize that the foreign judgment
must be res judicata in the court which rendered it. To hold other-
wise would be to place the judgment creditor in a better position
in the enforcing court than in the country where he secured the
judgment. Furthermore it would be impossible for the courts to
enforce a foreign provisional or interlocutory judgment without
interfering with the discretion of the foreign court. As was pointed
out by Lord Herschell in Nouvion v. Freeman: “I
… in order to establish that… [a final] judgment has been pronounced
it must be shown that in the Court by which it was pronounced, it
conclusively, finally, and for ever established the existence of the debt
of which it is sought to be made conclusive evidence in this country,
so as to make it res judicata between the parties.
In the Court of Appeal 169 Lord Justice Lindley was of the opinion
that:
The test of finality and conclusiveness of any judgment is to be found
in the view taken of it by the tribunals of the country in which it is
pronounced, and if a judgment leaves the rights of the parties unin-
vestigated and undetermined, and avowedly leaves those rights to be
164 Martin v. Trofimuk (1960), 32 W.W.R. 520 (Alta); Beatty v. Beatty, [1924]
1 K.B. 807.
165McIntosh v. McIntosh, [1942] O.R. 574 (C.A.).
IN Gauthier v. Routh (1843), 6 O.S. 602, at p. 607; Patrick v. Shedden (1853),
22 LJ. Q.B. 283; Graham v. Harrison (1889), 6 Man. R. 210 (C.A.), at p. 215;
Sheehy v. Professional Life Ins. Co. (1857), 2 C.B. (N.S.) 211 on appeal (1857),
3 C.B. (N.S.) 597 (Ex. Ch.).
167Russell v. Smyth (1842), 9 M. & W. 810; McPherson v. McMillan (1846),
3 U.C.Q.3. 34; Maguire v. Maguire (1921), 50 O.L.R. 100; the plaintiff was not
allowed to recover arrears of alimony but was entitled to recover the costs
awarded by the foreign judgment.
168 (1889), 15 App. Cas. 1, at p. 9.
169 (1887), 37 Ch. D. 244, at p. 255 (C.A.).
No. 1]
RECOGNITION AND ENFORCEMENT
determined in some other proceeding, the judgment cannot be treated
here as imposing an obligation which our tribunals ought to enforce.
With respect to judgments rendered in default of appearance,
the foreign procedure again is of major importance. For example,
in some countries the law provides that in the case of a judgment
rendered by default the defendant has six months before execution,
in which he may enter an opposition before the same court that
rendered it. If such opposition is entered, the judgment is entirely
superseded. Fresh proceedings are
instituted, and a complete
rehearing takes place on the merits. Whatever judgment results
becomes the final decision in the case.
Thus, as long as the defendant is entitled to enter an opposition,
the default judgment can only be considered provisional. As soon
as the prescribed period has expired without the party having taken
the necessary steps to reopen the litigation, the heretofore pro-
visional default judgment becomes final.170 In Boyle v. Victoria
Yukon Trading Co., however, the British Columbia Court held
that a default judgment may be final and conclusive even though
it is liable to be set aside in the very court which rendered it.
Hunter C.J. said: 171
In fact, if we were to say merely because a default judgment may be
set aside by the Court in which it was taken that therefore it is of
not final legal validity for the purpose of international suit, we woula,
in effect, be saying that the clearer the plaintiff’s case the more useless
his judgment would be.
Of course the mere fact that the judgment was obtained on
default of the defendant does not prevent it from being final and
conclusive. 72 A judgment conditional upon an act to be done or
an event to occur will not be enforced while the condition remains
unperformed 73 If the foreign judgment orders that the defendant
do something or if he does not, that he pay a stated sum of money
and the time for the performance of the act is limited, it will be
final only after that time has passed and it becomes a judgment
for the payment of a fixed sum of money. Of course a valid foreign
judgment will be enforced only to the extent to which it is
enforceable in the foreign country. It cannot be enforced if the
17o Jeannot v. Fuerst (1909), 100 L.T. 816.
171 (1902), 9 B.C.R. 213, at p. 223.
172 Bank of Bermuda Ltd. v. Stutz, [1965] 2 O.R. 121; Boyle v. Victoria Yukon
Trading Co., ibid.
173 Patrick v. Shedden (1853), 2 E. & B. 14; see also Gauthier v. Routh (1843),
6 O.S. 602, and Hutton v. Dent (1922), 53 O.L.R. 105, 70 D.L.R. 582, aff’d, [19231
S.C.R. 716, [1924] 1 D.L.R. 401.
McGILL LAW JOURNAL
[Vol. 17
creditor has been permanently enjoined from enforcing his judg-
ment. In other words, the foreign judgment must be one which
is still valid and capable of enforcement in the country where it
was rendered.
A more serious problem arises in regard to the enforcement
of foreign alimony decrees or orders. Can they be considered as
final when they are subject to change by the issuing court? Should
an exception to the general rules be made in their favour in view
of the special human interests involved? Canadian courts have
applied to them the same principles as in the case of other foreign
judgments.
It has been held that a valid foreign judgment which grants
a lump sum in full and in lieu of alimony is final if not subject to
change.’ 74 On the other hand an order or decree for alimony or
maintenance which can be varied or modified by the court that
made it including amounts past due is not a final judgment.’7
However, if no power to modify the decree is reserved, or if only
future instalments may be modified by the original court, the decree
is final to the extent that it will support an action for the amount
accrued and unpaid.176
This is a sound approach as in many countries a decree awarding
future alimony or maintenance payments, which may not be final
when rendered, becomes final for each instalment when it falls due,
in the absence of a contrary intent on the part of the court which
rendered the decree.
174 Sivaizie v. Swaizie (1899), 31 O.R. 324. The finality was not affected by
the fact that the judgment provided that upon neglect or refusal of the hus-
band to pay that sum the ex-wife could apply to the original court for an
order for enforcement.
175 MacFarlan v. Macartney, [1921] 1 Ch. 522; Harrop v. Harrop, [1920] 3
K.B. 386; Smith v. Smith, [1923] 2 W.W.R. 389 (Sask. CA.); Smith v. Smith
(1954), 13 W.W.R. (N.S.) 207, [1955] 1 D.L.R. 229 (B.C.); Maguire v. Maguire
(1921), 50 O.L.R. 100, at p. 105; Ashley v. Gladden, [1954] 4 D.L.R. 848 (Ont.
CA.); Martin v. Trofimuk (1960), 32 W.W.R. 520 (Alta). A California divorce
decree making allowance for support, maintenance and education of the
children of the marriage was not a final judgment as it was not capable of
execution without a court order in California. See also Perry v. Perry (1924),
54 O.L.R. 613, [1924] 4 D.L.R. 1177 (CA.) reversing 53 O.L.R. 502, [1924] 1
D.L.R. 665
1.76Beatty v. Beatty, [1924] 1 K.B. 807; Swaizie v. Swaizie (1899), 31 O.R. 324,
at p. 327; Hadden v. Hadden (1898), 6 B.C.R. 340: the judgment was on consent
and this consent gave a degree of finality to it. Robertson v. Robertson (1908),
16 O.L.R. 170; Wood v. Wood (1916), 37 O.L.R. 428; Meyers v. Meyers, [1935]
O.W.N. 547; cf. Maguire v. Maguire (1921), 50 O.L.R. 100.
No. 1]
RECOGNITION AND ENFORCEMENT
No action can be maintained on a mere order for interim alimony
pendente lite.177
To avoid hardship it would seem that even if the original court
retains the power to modify accrued instalments, the judgment
should be regarded as final with respect to them so long as an
application for their modification has not been made. Thus the
wife would not be forced to bring a new action on the foreign
decree for each instalment past due.
Many proposals have been made in order to overcome the diffi-
culties standing in the way of enforcing foreign alimony decrees.
Several provinces in Canada have adopted uniform statutes1 78 which
provide that orders subject to variation and orders for periodic
payments are enforceable with respect to accrued and future
instalments as if they had been originally pronounced by the forum.
Remedy given by a different court than that which rendered the
judgment
What is the effect of the pendency or possibility of an appeal
to some court other than the one which rendered the decision?
The general rule in Canada is that a foreign judgment is final and
conclusive even though it is subject to appeal or an appeal is
actually pending.’7 9
In Nouvion v. Freeman80 it was stated that:
The fact that a judgment or order may be appealed from, or that
it is made in a summary proceeding, does not prevent it from being
res judicata and actionable in this country.
If the court that handed down the decision cannot revise it, the
judgment is final in that court and res judicata between the parties.
It is immaterial that it is capable of being rescinded or varied
by some other court invested with competent appellate juris-
diction.18 Actually, whether or not the pendency of an appeal
affects the right to maintain an action upon the foreign judgment
depends upon the law of the state in which it was rendered and
177McIntosh v. McIntosh, [1942] O.R. 574, [1942] 4 D.L.R. 70 (CA.).
178 See infra section V.
170 Barned’s Banking Co., Ltd. v. Reynolds (1875), 36 U.C.Q.B. 256, at p. 274;
Davis v. Williams, [1938] O.W.N. 504; Maguire v. Maguire (1921), 50 O.L.R. 100,
at p. 103; Campbell v. Morgan (No. 2) (1918), 29 Man. R. 20 and cases cited
therein; Howland v. Codd (1894), 9 Man. R. 435, at p. 437; Wilcox v. Wilcox
(1914), 27 W.L.R. 359, at p. 363, 6 W.W.R. 213, 16 D.L.R. 491; Eastern Trust Co.
v. MacKenzie Mann & Co. (1916), 10 O.W.N. 445; Solmes v. Stafford (1894),
16 P.R. 78, 264; Turcotte v. Dawson (1879), 30 U.C.C.P. 23.
180 (1887), 37 Ch. D. 244, at p. 255 per Lindley, LJ.
’81Nouvion v. Freeman (1889), 15 App. Cas. 1, at p. 13, per Lord Watson.
McGILL LAW JOURNAL
[Vol. 17
where the appeal is pending.182 The law of the forum is resorted
to only in the absence of proof of the foreign law, on the assumption
that it is the same as the foreign law.
Logically, a judgment which is subject to reversal on appeal
should not be regarded as final. Historically, at common law the
procedure of writ of error acts merely as supersedeas to the
execution, it does not vacate the judgment, while a review, which
results in a trial de novo in the appellate court, entirely vacates
the original judgment. 3 In equity an appeal completely supersedes
the judgment of, the court below which is nullified.
Under modern statutes the defendant is frequently required
to give bond to stay execution on a money judgment, and therefore
no uniform practice prevails.”
If a pending appeal does not, by the law of the country in which
the judgment was rendered, vacate the judgment, an action may
be brought upon it here.8 5 If the effect, under foreign law, of a
pending appeal is to stay execution of the judgment, it cannot be
enforced.
To say that an appeal pending abroad does not affect the finality
of the foreign judgment irrespective of the effect this appeal has
in the country where the judgment was rendered disregards first
the fact that in some countries the pendency of an appeal will
defeat the right of action regardless of its effect as a supersedeas;
and second, the fact that the pendency of an appeal may cause
some unjust results if the enforcing court permits the action on
the judgment to be continued while the foreign court of appeal
is considering it. 88 For these reasons, in cases where the foreign
‘ 82 Barned’s Banking Co. Ltd. v. Reynolds (1875), 36 U.C.Q.B. 256, at p. 274;
Turcotte v. Dawson (1879), 30 U.C.C.P. 23 (C.A.): evidence needed as to the
effect of an appeal pending.
183 2 Ency. of P1. & Pr. (1897), p. 323; Campbell v. Morgan (No. 2) (1918),
29 Man. R. 20, at p. 21: “If execution has been stayed pending the appeal,
or if by the foreign law the entry of the appeal itself operates as a stay, the
defendant would be entitled as of right to have execution stayed here but
the foreign stay of execution would constitute no bar to the plaintiff’s right
to sue here.”
184 Black, Judgments (2d ed., 1902), Vol. 2, p. 774.
185 Scott v. Pilkington (1862), 2 B. & S. 11, 121 E.R. 978.
186 In Campbell v. Morgan (No. 2) (1918), 29 Man. R. 20, the court said, at
p. 21: “By our law neither the finality nor the conclusiveness of a foreign
judgment is affected by the fact that an appeal is pending in the foreign
country. The farthest our courts have ever gone in favour of the defendant
is to interpose the equitable jurisdiction of the court and on proper terms
stay execution until the appeal is disposed of. They have never allowed a
foreign appeal to operate as a bar to the action.”
No, 1] ,
RECOGNITION AND ENFORCEMENT
appeal neither vacates the foreign judgment nor suspends its
execution, Canadian courts have, on proper terms, stayed the local
proceedings to prevent any possible abuse of process.’8 7
On the other hand, when the judgment is of no force in the
country where it was rendered, because the effect of the appeal
is to vacate it or to prevent its execution, no action should be
allowed to be maintained on the foreign judgment. If the foreign
judgment is varied on appeal it will be recognized only as varied. 8 s
In other words no greater effect should be given to a foreign judg-
ment in the enforcing court than it has where it was rendered.
In a case where the proceedings in the enforcing court were stayed
and in the foreign country the original judgment was reversed on
appeal and restored by the court of last resort, the foreign judgment
will take its force from the decision of that court. The date of
the final decision will determine when the statute of limitations
begins to run.
From a practical point of view the first thing to do in every
case involving a foreign judgment that is under appeal, is to de-
termine the effect of such appeal under the foreign law. If the
enforcing court decides that the foreign judgment is not final, a
new action on the original cause can be brought in the forum
involving the same issues and a new judgment conflicting with the
foreign one may be rendered.8 9 The same conflict may arise should
the foreign judgment be held final and it is reversed after a domestic
judgment has been rendered upon it.
In order to avoid any possible embarrassment, the best solution
is to grant a stay of execution or a stay of proceedings as soon
as the question of appeal is raised, provided the human and social
interests involved are given full consideration by the court before
issuing its order. This is very important in alimony cases. The stay
of proceedings could also be granted at the point where a possible
modification or reversal of the foreign judgment could cause in-
justice or hardship to the party relying upon the judgment.
Where a judgment is given in the forum while an appeal is
pending in the foreign country and the foreign court reverses the
187 Scott v. Pilkinton (1862), 2 B. & S. 11, 121 E.R. 978; Nouvion v. Freeman
(1889), 15 App. Cas. 1, 37 Ch. D. 244. See especially Huntington v. Attrill (1887),
12 P.R. 36; Campbell v. Morgan, [1919] 1 W.W.R. 644 (Man.); B.C. Order 58,
rule 2; Howland v. Codd (1894), 9 Man. R. 435; Campbell v. Morgan (No. 2)
(1918), 29 Man. R. 20.
188 Solmes v. Stafford (1894), 16 P.R. 78, 264.
189 By virtue of the non merger rule the judgment creditor may always do
the same thing even when the foreign judgment is final.
McGILL LAW JOURNAL
[Vol. 17
original judgment, the judgment in the forum will not be superseded
by this reversal. It cannot be vacated except upon direct application,
because the obligation created by the second judgment exists
independently of the obligation on which it was based. Depending
upon the law of the forum, the judgment debtor may also have
the enforcement of the judgment in the forum enjoined. Where
the second judgment is sought to be enforced as a cause of action
or as a bar in the courts of a third state and while the proceedings
are pending, the first judgment is reversed, the second judgment
might still be enforced, although it is assumed that the third
state would disregard a judgment which is based on a void judgment
on the ground of denial of natural justice or public policy. Of
course if on account of the reversal of the original judgment, the
second judgment could be reversed in the rendering state, it would
not be final in the third state. As to the method of attack, the
procedure of the third state would prevail.
Actually the best solution is to hold a foreign judgment final
and conclusive notwithstanding that an appeal may be pending
against it, or that it may still be subject to appeal, in the country
of the original court, provided it can still be executed in that country.
3) A foreign judgment if in personam must be for a debt or a
definite sum of money
A foreign judgment in personam must be for a definite and
actually ascertained sum of money’ 90 and not for a sum to be
determined, assessed, or computed at a later stage by the tribunal
itself or some officer or person acting under the authority of that
tribunal or for a specific sum to be paid after deduction therefrom
of an unspecified amount of costs thereafter to be ascertained. 191
If the costs are to be added to the amount of the foreign judgment
and have been taxed, their amount may be included and the foreign
judgment is for a specific sum. 9 2 In other words where a foreign
190Sadler v. Robins (1808), 1 Camp. 253, 170 E.R. 948; Bonn v. National
Trust Co., [1930] 4 D.L.R. 820 (Ont.); Barned’s Banking Co. v. Reynolds (1875),
36 U.C.Q.B. 256, at p. 280.
191 Sadler v. Robins (1808), 1 Camp. 253, 170 E.R. 948; see also Hutton v.
Dent (1922), 52 O.L.R. 378, at p. 382, aff’d 53 O.L.R. 105, 70 D.L.R. 582, aff’d
[1923] S.C.R. 716, [1924] 1 D.L.R. 401.
192 Interest given by the law of the country whence the judgment came is
an integral part thereof and may be recovered, see Solmes v. Stafford (1893),
16 P.R. 78, at p. 82, aff’d in part at p. 264; Livesley v. Horst Co., [1924] S.C.R.
605, at p. 610, per Duff, J.; Cf. Martel v. Dubord (1885), 3 Man. R. 598.
No. 1]
RECOGNITION AND ENFORCEMENT
judgment awards a certain debt and costs to be taxed, such costs
are recoverable in an action on the judgment on proving the amount
for which they have been taxed. 93 Final foreign orders for costs
are enforceable in most provinces.’9
The rule that a foreign judgment must be for a definite sum
of money is based on the fact that historically the form of action
for the enforcement of a foreign judgment was debt, although
in some cases assumpsit was used.
It is not necessary that the foreign judgment should give rise
to a debt in the technical sense. Any kind of obligation which is
definitely fixed in money by the foreign judgment would make
that judgment recognizable and enforceable in Canadian courts.
The sum is specific when it is fixed and unalterable on the face
of the record,’9 5 or when the balance due upon a dissolution of
partnership is definitely fixed according to the decision. 98 A sum
is sufficiently certain if it can be ascertained by a simple arithmetical
process. 9 7
An action will not lie on a foreign judgment to do an act. Only
foreign judgments awarding money to be paid upon a cause of
action that is ascertained and past can be enforced. 98
1’3Hall v. Armour (1836), 5 O.S. 3 (C.A.).
’94 Russell v. Smyth (1842), 9 M. & W. 810; Cavanagh v. Lisogar (1956), 19
W.W.R. 230 (Alta); McPherson v. McMillan (1846), 3 U.C.Q.B. 34, at p. 38;
Maguire v. Maguire (1921), 50 O.L.R. 100, 64 D.L.R. 180 (CA.); Corse et al v.
Moon (1889), 22 N.S.R. 191 (C.A.); as to the recovery in Ontario of costs
incurred in a Quebec judgment see s. 54 of the Ontario Judicature Act, R.S.O.,
1960, c. 197 as am, Contra: Re Reciprocal Enforcement of Judgments Act; Re
Paslowski v. Paslowski (1957), 22 W.W.R. 584, 65 Man. R. 206, 11 D.L.R. (2d)
180; Koven v. Toole (1954), 13 W.W.R. 444, [1954] 4 D.L.R. 856; When a claim
is made on a specially endorsed writ for the taxed costs of a foreign judgment,
the date of taxation must be stated: Macaulay Bros. V. Victoria Yukon Trading
Co. (1902), 9 B.C.R. 136 reversing 9 B.C.R. 27; in Harris v. Garson (1921), 49
N.B.R. 91, 67 D.L.R. 682 (CA.) it was held that when a defendant who is
sued in New Brunswick on a foreign judgment defends on the merits and
succeeds, he is not liable for the costs of the action in the foreeign court. A
plaintiff who sues on the foreeign judgment cannot sever such judgment into
damages and costs of suit.
195 Henderson v. Henderson (1884), 6 Q.B. 288.
196 Henley v. Soper (1928), 8 B. & C. 16.
197 Beatty v. Beatty, [1924] 1 K.B. 807 per Scrutton, J., at p. 816.
198 Gauthier v. Routh (1843), 6 0.S. 602 (C.A.); Duke v. Andler, [1932] 4
D.L.R. 529 (S.C.C.).
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Foreign judgments for ordering the payment of taxes””‘ fines
or penalties 20 are not recognized and enforced in Canada. 1
4) Conclusiveness of foreign judgments
Is a foreign judgment in personam or in rem conclusive as to
any matter adjudicated upon? Is it possible to impeach such a
judgment for error either in fact or in law? The foreign court
may have taken a wrong view of the facts as presented to it or
it may have misinterpreted its own law, or the law of some other
country, which it professed to declare and upon which the judgment
is founded.
a) Common Law
The early English and Canadian cases held that while a foreign
judgment in an action in personam constitutes a good cause of
action and amounts to prima facie evidence of a debt, it is not
conclusive and the merits of the case may be re-examined. 20 2 This
view was based upon the fact that the very technical qualities
of a court of record were not attributable to foreign courts. It also
followed that there was no merger of the original cause of action
in the judgment. Therefore it was open to the party who had
recovered the judgment either to bring an action upon the judgment
or to sue on the original cause. A further distinction was made
between the position of a plaintiff who seeks to enforce a judgment
which he has obtained in his favour in a foreign country and the
position of a defendant who claims the protection of a foreign
judgment given in his favour when the plaintiff sues him on the
original cause of action. It was held that when the defendant
pleads the foreign judgment in his favour as a bar it is conclusive
as to the facts involved in it and the grounds on which it rests.
In 1851 in Bank of Australasia v. Nias20 3 Lord Campbell C.S. said:
It does not appear, however, that the question has ever been solemnly
decided, whether, in an action on a foreign judgment, the merits of the
case upon which the foreign court has regularly adjudicated between
the parties may again be put in issue and retried… It seems contrary
199 U.S.A. v. Harden (1963), 44 W.W.R. 630.
20OHuntington v. Attrill, [1893] A.C. 150; in Wood v. Wood (1916), 37 O.L.R.
428, 28 D.L.R. 367, 31 D.L.R. 765 (C.A.), it was held that a judgment for alimony
is not penal.
201 See Castel, Conflict of Laws (2nd ed., 1968), p. 168.
202 Eg. Walker v. Witter (1778), 1 Doug. 1, at p. 5.
203 (1851), 16 Q.B. 717, at p. 735.
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RECOGNITION AND ENFORCEMENT
to principle and expediency for the same questions to be again submitted
to a jury in this country.
This view was reaffirmed by Blackburn J. in Godard v. Gray: 2 04
… the decisions … seem to us to leave it no longer open to contend,
unless in a court of error, that a foreign judgment can be impeached
on the ground that it was erroneous on the merits; or to set up as a
defense to an action on it; that the tribunal mistook either the facts
or the law … the defendant can no more set up as an excuse.., that
the judgment proceeded on a mistake as to English law, than he could
set up as an excuse that there had been a mistake as to the law of some
third country incidentally involved, or as to any other question of fact.
The merits of a foreign judgment, in rem or in personam, are not
examinable at all whether the judgment is relied upon by the
plaintiff as a cause of action or pleaded by the defendant as a bar
to an action instituted against him. The rule that the courts will
not permit a retrial of the issues which have already been decided
by the foreign court is now well settled in England.
Conclusiveness is the logical consequence of the fact that a foreign
judgment imposes an obligation on the defendant to obey the judgment
and the successful plaintiff has the corresponding right to demand
satisfaction.205
Actually, as pointed out in Bank of Bermuda Ltd. v. Stutz 20 6
conclusiveness is closely related to res judicata although it did
not originate from it.
Once a foreign court of competent jurisdiction, before which according
to its procedure the whole merits of the case were open to the parties,
had given a final judgment that a debt existed, the only remedy was
an appeal to a higher tribunal, however much the parties might have
failed to take advantage of their rights. Until such an appeal was
taken, the existence of the debt was res judicata as between the parties.
The English rule also prevails in Canada, at common law: a
final judgment, if rendered by a court of competent jurisdiction
and if free from fraud, is conclusive on the merits and not open to
204 (1870), L.R. 6 Q.B. 139, at p. 150.
2 05 Born-Reid, Recognition and Enforcement of Foreign Judgments (1954),
3 Int. & Comp. L.Q. 49, at p. 52.
206 [1965] 2 O.R. 121.
2 7 Senkisv et at. v. Muzyka et at. (1967), 61 W.W.R. 58, 65 D.L.R. (2d) 622
(Sask.), aff’d (1969), 68 W.W.R. 515 (CA.) (1970), 72 W.W.R. 314 (S.C.C.);
Jones v. Smith (1925), 56 O.L.R. 550, 27 O.W.N. 447, [1925] 2 D.L.R. 790 (C.A.);
Law v. Hansen (1895), 25 S.C.R. 69, at p. 73: “Judgments in rem are conclusive
against all the world, not only as to the rem itself, but also as to the ground
on which the tribunal professes to decide or may be presumed to have
decided.” Meagher v. Aetna Insurance Co. et aL. (1873), 20 Gr. 354; Michado v.
The Ship “Hattie & Lottie” (1904), 9 Ex. C.R. 11.
McGILL LAW JOURNAL
[Vol. 17
reexamination. This rule applies to foreign judgments in rem2 ‘
and in personam s
From a practical point of view, the doctrine that a valid foreign
judgment is conclusive as to any matter thereby adjudicated upon,
makes it impossible to impeach the judgment for any error of
fact even if such error is manifest on the face of the foreign
proceedings20 9 Canadian courts do not sit as courts of appeal
from the foreign courts. As Lord Campbell stated in Bank of
Australasia v. Nias:210
The pleas demurred to, might have been pleaded, and if there be any
foundation for them, they ought to have been pleaded in the original
action.
A valid foreign judgment creates a new right in the judgment
plaintiff and imposes a new duty on the judgment defendant, these
rights being independent of and distinct from the cause of action
alleged in the suit wherein the judgment was rendered. A suit on
this judgment being one on a new right, it is immaterial whether
or not a valid cause of action existed prior to the judgment.”‘
208Hutton v. Dent (1922), 53 O.L.R. 105, 70 D.L.R. 582, affirming 52 O.L.R. 378,
aff’d [1923] S.C.R. 716, [1924] 1 D.L.R. 401; Bank of Bermuda Ltd. v. Stutz, ibid.;
Page v. Phelan (1844), 1 U.C.Q.B. 254, at p. 255; Kingsmill & Davis v. Warrenger
& Wheeler (1852), 13 U.C.Q.B. 18, at p. 78; Metropolitan Trust & Savings Bank
v. Osborne (1910), 1 O.W.N. 785, at p. 786; Paisley v. Brody (1885), 11 P.R. 202
(CA.); Moritz v. Canada Wood Specialty Co. (1907), 17 O.L.R. 53, at p. 62
(CA.); Fowler v. Vail (1879), 4 O.A.R. 267 (CA.); Hickey v. Legresley (1905),
15 Man. R. 304, at p. 307; Hutton v. Dent (1922), 70 D.L.R. 582 (Ont. C.A.);
Law v. Hansen (1895), 25 S.C.R. 69, at pp. 72-73; Meagher v. Aetna Insurance
Co. et al. (1873), 20 Gr. 354, at p. 372; Quickstad v. McNeill et al., [1932] 4
D.L.R. 427 (B.C.); Shklov v. Flaman, [1949] I W.W.R. 255 (Sask.); McPhedran
v. Lusher (1835), 3 O.S. 602 (C.A.).
2 O9Barned’s Banking Co. Ltd. v. Reynolds (1875), 36 U.C.Q.B. 256, at pp.
273-274; Robertson v. Robertson (1875), 22 Gr. 449, at p. 454; Contra: Boyle v.
Victoria Yukon Trading Co. (1902), 9 B.C.R. 213.
210 (1851), 20 LJ.Q.B. 284, at p. 292.
2 llGodard v. Gray (1870), 6 Q.B. 139. In this case an action was brought
in England on a French judgment ordering the defendants to pay a certain
sum of money. The defense was that the judgment was erroneous and ought
to have been pronounced in favour of the defendants. The French judgment
awarded damages against the defendants for breach of an English charter-
party which contained a clause that the penalty for the breach was the
estimated amount of freight. According to English law this clause does not
absolutely limit the damages, but a party is entitled to claim damages in
excess, if the claim can be founded on grounds other than the penal clause.
The French court, however, which intended to interpet the charter-party
according to English law, erroneously came to the conclusion that the penal
No. 1]
RECOGNITION AND ENFORCEMENT
This view could also be based on the doctrine of res judicata. There
can be no retrial of the issues which have already been finally
settled by a competent foreign tribunal.
Since proper procedure is provided in all countries for an appeal
from erroneous decisions, no hardship can result by requiring
defendants to follow such a procedure.
Errors of law (e.g. mistakes made by the foreign court as to
its own law or the law of some other country) cannot be questioned
in the courts of Canada as the courts will assume that the foreign
judgment has been rendered in accordance with the foreign law,12
because the foreign court is the tribunal best qualified to interpret
its own law.
If the foreign court intentionally and knowingly disregarded the
law of the enforcing court, but has nevertheless considered judicially
the question, no impeachment of the judgment will occur. On the
other hand, if perversely the court disregarded that law, the judg-
ment may be set aside on the ground of fraud, denial of justice
or violation of international law, but not on the ground of error.213
clause conclusively limited the damages, and assessed the damages on that
basis. The contention of the defence, that the French judgment showed on
the face of it, an erroneous interpretation of English law, was therefore
correct. However the court rejected it. Blackburn, J. said: “We enforce a
legal obligation, and we admit any defence which shews that there is no
legal obligation or a legal excuse for not fulfilling it; but in no case that we
know of is it ever said that a defense shall be admitted if it is easily proved,
and rejected if it would give the court much trouble to investigate it. Yet
on what other principle can we admit as a defence that there is a mistake
of English law on the face of the proceeding and reject a defence that there
is a mistake of Spanish or even Scotch law apparent in the proceedings,
or that there was a mistake of English law not apparent on the proceedings,
but which the defendant avers that he can shew did exist?”, at p. 152.
See also Castrique v. Imrie (1870), L.R. 4 H.L. 414, judgment in rem;
Senkisv et at. v. Muzyka et al. (1967), 61 W.W.R. 58, 65 D.L.R. (2d) 622 (Sask.),
aff’d (1969), 68 W.W.R. 515 (CA.) aff’d (1970), 72 W.W.R. 314 (S.C.C.), judgment
in rem.
212 In Meyer v. Ralli (1876), 1 C.P.D. 358 the Court held that there is one case
where an error in law committed by a foreign court may be corrected, i.e.
where both parties admitted that the foreign court had wrongly interpreted
its own law. Where such an admission is made, no effect will be given to
the foreign judgment. This decision does not seem to change the rule con-
cerning error, since the decision was rendered under the special circumstance
where it was admitted that the foreign judgment was erroneous at law and
there was no examination of such error by the Court of Common Pleas.
213 See section III (5)(b).
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[Vol. 17
In general, it is not open to inquiry whether the foreign court
had correct information as to the method of applying Canadian
or foreign law, because the responsibility rests on the defendant
to adduce evidence with regard to that law and its proper appli-
cation.
The same rules apply where the foreign court has purported
to apply the law of a third country and has made an error in its
interpretation. 2 14 In Barned’s Banking Co. Ltd. v. Reynolds,2 15
Wilson 3. said:
The fact that the foreign Court has mistaken the law of another country
in the judgment pronounced will not necessarily affect the judgment
when sued upon in the country whose law has been mistaken, because
the law of that other country is a matter of fact, and has to be proved
as a fact in the country where the original proceedings were being
carried on. And if the defendant in that suit did not bring to the
Court the knowledge of what the foreign law was, he has omitted a
matter which, like any other fact not proved which he might have
proved in his defence, he cannot complain of; and such judgment rightly
given upon the facts which were before the Court is a valid and binding
judgment, although there might have been a wholly different judgment
pronounced if the full and correct state of the foreign law had been
duly proved.
Canadian courts will refuse a retrial even if the error in the foreign
judgment appears on the face of it, as they assume that this error
would not have occurred if the parties had presented their case
properly. Any such error must be corrected on appeal to the superior
courts in the foreign country concerned. The foreign court is
required only to receive and consider all available evidence and
then in good faith try to determine, as well as it can, what the law
of the other country is.21 However, in British Columbia, in Boyle
v. Victoria Yukon Trading Co. 21 7 the court said:
The first question then to be determined is, can the defendants allege
that the judgment is void as being based on a manifestly ultra vires
contract, or, in other words, can it be impeached for manifest error?
No doubt we must be careful not to infringe the doctrine that we
are not to act as a Court of Appeal to review a foreign judgment, but
I think that neither the comity of the Provinces, or the canons of
international law, require us to blindly enforce a default judgment
obtained in a sister jurisdiction. I think, on the contrary, that we are
entitled to scrutinize all the proceedings …. and if manifest error going
to the root of the judgment appears, that we may, and should, decline
214 Godard v. Gray (1870), 6 Q.B. 139.
215 (1875), 36 U.C.Q.B. 256, at pp. 273-274 (C.A.).
216 Castrique v. Imrie (1870), L.P. 4 H.L. 414.
217 (1902), 9 B.C.R. 213, at p. 217 (C.A.).
No. 1]
RECOGNITION AND ENFORCEMENT
to perpetuate and enforce the error… No doubt a judgment may be
got on a contract as to which there may be doubt as to whether it is
void or not, yet so long as such judgment stood it would ordinarily
be presumed that the judgment was valid; but I think this presumption
cannot apply to a default judgment which purports to enforce a contract
ex facie void by the paramount law of the land.2 18
And he added:
The case in hand is not that of a decision in rem emanating from
the Courts of another nation after real litigation, but is a judgment
taken by default in another Canadian jurisdiction in disregard, as it is
alleged, of the paramount law of the land, which both the Yukon and
British Columbia Courts are bound to obey and properly administer.
Moreover, it does not require argument to shew that there is a radical
distinction between a judgment thus obtained and one which is the
result of real litigation. In the case of a default judgment, the judicial
mind is not necessarily applied to the matters in issue, but the machinery
of the Court is employed at the will of the plaintiff to record a judgment
in his favour which may or may not be null and void.
It is submitted that this decision is erroneous as it contradicts
the long line of decisions that hold foreign judgments conclusive
on the merits. British Columbia is the only province where it is
held that a judgment taken by default will not be recognized and
enforced where manifest error in the judgment is shown.
Anglo-Canadian courts will not deny recognition or enforcement
to foreign money judgments solely because the procedural laws
of the foreign court were violated. For *example, a defect in the
pleadings before the court which rendered the judgment is no
defense to an action on the judgment in another state. 19 Again
the basis of this rule is the belief that the foreign court has the
best knowledge of its own procedure.
If the foreign court had jurisdiction in the international sense,
lack of competence according to the law where the judgment was
rendered is not a ground for setting it aside?20
21s The court distinguished, Castrique v. Imrie; see also Re Gacs and Meiero-
vitz (1968), 68 D.L.R. (2d) 345 (B.C.), at p. 351, Re House of Colour Ltd. v.
Expert Decorators Ltd. et a! (1968), 70 D.L.R. (2d) 527.
219Pemberton v. Hughes, [1899] 1 Ch. 781.
220 The following cases are usually cited in support of this rule: Vanquelin v.
Bouard (1863), 15 C.B.N.S. 341, where the court had competence over the
subject matter, bills of exchange, the error being as to the class of persons;
Pemberton v. Hughes, [1899] 1 Ch. 781; C. v. C. (1917), 39 O.L.R. 571. Here the
court had competence in the class of case, divorce, the defect being irregu-
larity of procedure; discussed supra: jurisdiction; Prentiss v. Beemer (1847),
3 U.C.Q.B. 270; Meagher v. Aetna Insurance Co. et at (1873), 20 Gr. 354.
McGILL LAW JOURNAL
[Vol. 17
Dean Read, on the other hand, believes that a foreign judgment
rendered by a court which has no competence is a nullity although
its law district may have jurisdiction.22′ He points out that this
view is not in conflict with the conclusiveness doctrine because
the jurisdiction of the foreign law district to create a right of the
sort in question has not been examined.
Canadian courts, ought not refuse to give effect to a foreign
judgment based on an erroneous choice of law.
It must be noted that in Canadian courts a foreign judgment
in personam is only conclusive as between the parties and privies,
and on the material point or points actually decided. The con-
clusiveness rule applies to the points of facts and law which directly
form the subject matter of the decision, but not to other questions
which are merely collateral and incidental in character. Thus, if
the issues in the foreign and Canadian proceedings are not identical,
the rule as to the conclusive effect of the foreign judgment does
not apply. The foreign judgment operates as res judicata with
respect to any point which concerns the subject matter of the
foreign suit, and which should have been raised in the foreign
court but was not in fact pleaded. This view is prompted by the
desire to avoid multiplicity of actions and to protect the defendant
from vexatious litigation. A foreign judgment in rem is conclusive
against the entire world.222
Statutory Reopening of the Merits
The common law rule that foreign judgments are conclusive on
the merits has been modified by statute in several provinces.
Ontario
In 1860 a statute was passed in the Province of Canada which
contained three provisions: one for foreign judgments generally
and the other two for judgments as between the two parts of the
Province (Upper and Lower Canada).
Section 1 read as follows: 223
221 Op. cit., p. 100.
222 Castrique v. Imrie (1870), L.R. 4 H.L. 414; also Senkiw et at. v. Muzyka
et al. (1967), 61 W.W.R. 58, 65 D.L.R. (2d) 622, aff’d (1969), 4 D.L.R. (3d) 708
(CA.), affd (1970), 72 W.W.R. 314 (S.C.C.); Law v. Hansen (1895), 25 S.C.R.
69, at p. 72.
223 (1860), 23 Vict., c. 24; Manning v. Thompson (1867), 17 U.C.C.P. 606 (C.A.);
Barned’s Banking Co. Ltd. v. Reynolds (1875), 36 U.C.Q.B. 256, at p. 290;
Waydell et al v. Provincial Insurance Co. (1862), 21 U.C.Q.B. 612.
No. 1]
RECOGNITION AND ENFORCEMENT
In any suit brought in either section of the Province upon a Foreign
Judgment or Decree (that is to say, upon any Judgment or Decree not
obtained in either of the said sections, except as hereinafter mentioned)
any defence set up or that might have been set up to the original suit
may be pleaded to the suit on the Judgment or Decree.
This was a reversal of the common law rule of conclusiveness
since all judgments rendered outside the Province of Canada could
have their merits re-examined.
Section 4 provided that:
In any suit brought in either section on a judgment or decree obtained
in the other section in a suit in which personal service was not obtained
and in which no defence was made, any defence that might have been
set up to the original suit may be made to the suit on such judgment
or decree.
The merits of judgments rendered in either part of the Province
in the original action service
of Canada could be reopened only if
was not personal and no defence was made.
According to section 2:
In any suit brought in either section on a judgment or decree obtained
in the other section in a suit in which the service of process on the
defendant or party sued has been personal, no defence that might have
been set up to the original suit can be pleaded to that brought on the
judgment or decree.22 4
The judgment also was conclusive on the merits as between
the two parts of the Province of Canada where the service was not
personal but a defence was entered.
Section 1 was repealed in 1876225 and today the common law
rule applies to all judgments with the exception of those rendered
in the Province of Quebec.
Thus, sections 52 and 53 of the Ontario Judicative Act 228 repro-
duce sections 2 and 4 of the 1860 legislation.
52. Where an action is brought on a judgment obtained in the Province
of Quebec in an action in which the service on the defendant or party
sued was personal, no defence that might have been set up to the
original action may be made to the action on the judgment.
53. Where an action is brought on a judgment obtained in the Province
of Quebec in an action in which the service was not personal and in
which no defence was made, any defence that might have been set up
to the original action may be made to the action on the judgment.
In order to make a Quebec judgment binding on a defendant not
otherwise subject to the international jurisdiction of the Quebec
224 Section 2.
225 39 Vict., c. 7, s. 1 and Sch. A. (Ont.).
226 R.S.O., 1960, c. 197, as am.
McGILL LAW JOURNAL
[Vol. 17
courts, the defendant must have been personally served in the
Province of Quebec. Personal service in Ontario or elsewhere is
not sufficient.22 7 It would seem that the place of service whether
within or without the territory of the original Court should be
irrelevant.
228
Section 52 does not change the common law rules. On the other
hand, section 53 modifies the rules since it allows a defendant
against whom a judgment has been recovered in Quebec and who
is subject to the jurisdiction of the Quebec courts on a ground
other than that of personal service in Quebec to set up, when
sued in Ontario on such a judgment, any defence which he could
have set up in the Quebec action, provided he made no defence
to that action. 22 9
Manitoba
In Manitoba, according to section 83 of the Queen’s Bench Act: 230
Subject to The Reciprocal Enforcement of Judgments Act, a defendant
in an action upon a foreign judgment may plead to the action on the
merits, or set up any defence that might have been pleaded
to the
original cause of action for which the judgment was recovered; but the
plaintiff may apply to the court to strike out any such pleading or
defence upon the ground of embarrassment or delay.23′
In Marshall v. Houghton 2 2 Dysart J. pointed out that section 82:
… was apparently introduced to afford a sanctuary for debtors who cared
to resort hither, by placing at their disposal, for the determination of
227Weshler Sales Promotions Ltd. v. Koltz, [1969] 2 O.R. 134; Lung v. Lee
(1928), 63 O.L.R. 194, [1929] 1 D.L.R. 130; approving Vdzina v. Will H. New.
some Co. (1907), 14 O.L.R. 658 and overruling Court v. Scott (1881), 32 U.C.C.P.
148 (C.A.); Etler v. Kerterz, [1960] O.R. 672 (C.A.),
[1960] O.W.N. 545.
2 2 8 See Riddell, SA. dissenting in Lung v. Lee, [1929] 1 D.L.R. 130, at p. 131,
see also Falconbridge, (1929), 7 Can. Bar Rev. 131; Beloff Roofing Co. v. Jelinek,
[1953] O.W.N. 390: in his writ of summons specially endorsed the plaintiff
need not state particulars of service on the defendant nor whether he de-
fended the action in Quebec. These are matters to be raised by the defendant.
229 Lung v. Lee (1928), 63 O.L.R. 194, at p. 199; Plymouth Import Co. Ltd. V.
Keanerman, [1947] O.W.N. 301; Beloff Roofing Co. v. Jelinek, [1953] O.W.N.
390. See also Turcotte v. Dawson (1879), 30 U.C.C.P. 23 (C.A.) and Curtis v.
Curtis, [1943] O.W.N. 382.
230 R.S.M. 1970, c. 280. This provision was introduced in 1876, 39 Vict., c. 2,
s. 8 (Man.).
21 For a history of the section see Hickey v. Legresley (1905), 15 Man. R. 304,
at pp. 313-315; Lesperance v. Leistikow, [1935] 3 W.W.R. 1, 43 Man. R. 322.
232 [1922] 3 W.W.R. 65 at 70, 68 D.L.R. 308, at p. 312, affirmed [1923] 2 W.W.R.
553, 33 Man. R. 166 (C.A.).
No. 1]
RECOGNITION AND ENFORCEMENT
their rights, the laws, Courts and juries of [Manitoba]. But does this
right to have their claims litigated afresh in this jurisdiction deprive the
plaintiff of all evidential value of the judgment obtained by him in a
foreign jurisdiction on that original cause of action? In my opinion it
does not. In
this case the plaintiff might have pleaded the foreign
judgment without setting up his alternative and allowed the defendant
to plead the original cause of action, after which the plaintiff might
have replied. That would be the logical course. The plaintiff, however,
in his statement of claim, has pleaded both foreign judgment and the
original cause of action. This removed the necessity of the defendant
invoking section [83]. The situation, therefore, is, that if the plaintiff
at the trial after proving his foreign judgment had rested his case, he
would without more be entitled to judgment, unless defendant came
forward and either disproved or overcame the strength of the prima
facie case. While the general onus of proving his case is always on the
plaintiff, there are times at certain stages of a trial when the duty of
coming forward may be shifted to the defendant, and this is so after
the plaintiff has established a prima facie case. The foreign judgment,
therefore, having once been proved, casts upon the defendant the onus
of impeaching the judgment or breaking it down.2 33
In Hickey v. Legresley 234 Richards J. explains the purpose of
section 83 as follows:
It seems to me that the Legislature manifestly intended to give to any
one coming here from another province or country, who should be
sued here on a judgment of any Court of such other province, or country,
the benefit of all defences which he could have set up, if sued here on
the original cause of action, and at the same time thought it would
be inequitable, when so enacting, to deprive him of any defences not
available under the law of Manitoba but which he could have set up
in the original jurisdiction where the liability, if any, has been incurred.
I am of opinion that, in order to carry out such intention, the words’
plead to the action on the merits’ were enacted to cover the former
object, and the words which follow
‘merits’ were enacted for the
latter purpose. The method of pleading a defence, which is available
because of its being good under foreign law, is to set out the facts, and
to state, as has been done in this case, that they constitute a defence
under such foreign law.
In an action in Manitoba on a foreign judgment the fact that
defenses to the original cause of action have been raised and tried
in the foreign court does not prevent their being raised and tried
again. However there is discretion in the Manitoba court to allow
233 In Lesperance v. Leistikow, [1935] 3 W.W.R. 1, at p. 7, 43 Man. R. 322
(CA.), the court said that the section must be read in its full and literal sense
but that it must be sparingly used as it is a survival of a doctrine that has
now been discarded by most courts.
234 (1905), 1 W.L.R. 546, 15 Man. R. 304, at p. 310 (CA.) and (1906), 4 W.L.R.
46 (Man.).
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the defenses or strike them out on the ground of embarrassment
or delay. The defenses which may he invoker under section 83
are governed by the law of the foreign court that rendered the
judgment sought to be enforced in Manitoba. 5
Furthermore the defendant may set up only those defenses
which might have been set up to the original cause of action in
the foreign court.236 “In enabling the court to determine how to
exercise properly its judicial discretion and correctly ascertain the
real intention of the defendant, the fact that the case has been
tried out in a foreign court, that an unsuccessful appeal has
been taken, or that a consent judgment has been entered will have
a very strong bearing, but in each case the discretion must be
exercised upon the merits of that case alone, and the fact that the
case has been tried out under a foreign jurisdiction will not con-
stitute an absolute bar.”237
If the defendant sets up defences that have already been pleaded
and fought out in the foreign court they may be struck out by the
court on the ground of embarrassment or delay.28 The plaintiff can-
235 Harbican v. Kennedy, [1937] 2 D.L.R. 541.
236 Bank of Montreal v. Cornish (1879), Man. R. Temp Wood 272, at p. 279:
“… under our own local Act on this subject, there may be pleaded any plea
on the merits, or any plea setting up any defence which might have been
pleaded in the original action in which such judgment was recovered.” Hickey
v. Legresley (1905), 1 W.L.R. 546, 15 Man. R. 304; Int. etc. Corporation v. G.N.W.
Central Railway (1893), 9 Man. R. 147; New Hamburg Mfg. Co. V. Shields (1906),
4 W.L.R. 307, 16 Man. R. 212; Harbican v. Kennedy, [1937] 2 D.L.R. 541 (Man.);
British Linen Co. v. McEwan (1892), 8 Man. R. 99, per Taylor, C.J., at p. 110:
“Under the statute the defendant may plead to the action on its merits and
set up any defence to the action as brought on the judgment or he may set
up a defence which he might have pleaded to the original cause of action
for which the judgment was recovered in the court in which it was recovered.
I cannot see how it can be held that a defendant can plead in an acttion
on a judgment, a defence which he ought have set up to the original cause
of action, had it been sued upon in this court, so long as the words “which
ought have been pleaded” stand as they do in the statute.”
2 37Callaghan v. Nicholls, [1921] 3 W.W.R. 476, at p. 478. See also Moore v.
International Securities (1916), 10 W.W.R. 378, 34 W.L.R. 219; Gault v. McNabb
(1886), 1 Man. R. 35; British Linen Co. v. McEivan (1892), 8 Man. R. 99; Hickey
v. Legresley (1905), 15 Man. R. 304; Sloman v. Brenton, [1916] 9 W.W.R. 1466;
Lange v. Manitoba Western Colonization Co. Ltd., [1921] 3 W.W.R. 877; Wright
v. Narovlansky, [1920] 1 W.W.R. 680.
3s8 Moore v. Int. Securities Ltd. (1916), 10 W.W.R. 378, 34 W.L.R. 219 (C.A.);
Sloman v. Brenton (1916), 9 W.W.R. 1466, 33 W.L.R. 818, 29 D.L.R. 387 (Man.);
Gault v. McNabb (1884), 1 Man. R. 35; Meyers v. Prittie (1884), 1 Man. R. 27.
Cf. Hickey v. Legresley (1905), 1 W.L.R. 546, 15 Man. R. 304: the mere fact
No. ii
RECOGNITION AND ENFORCEMENT
not set up embarrassment because he is required to litigate again
issues that have already been tried by the foreign court. Nor can the
pleading or defence for the like reason be called vexatious or dila-
tory. The court must be convinced that the pleading or defence
is without merit, or has an ulterior purpose before it can exercise
in the plaintiff’s favour the discretion given by section 83. If the
pleas are untrue in fact and the defence is not a bona fide one,
the proviso applies. 23 9
The right of a defendant to plead the merits of the case is
subject to the discretionary power of the court.240
In pleading a defence good under the foreign law, the facts
constituting such defence must be set out.241 If the defendant pleads
the statute of limitations, the question whether that would have
been a defence in the foreign jurisdiction is a question of foreign
law that must be set up.2 4 2 Section 83 is made subject to the
Reciprocal Enforcement of Judgments Act.2 43 This does not seem
to prevent the reopening of the merits if the law of the Province
allows it since section 3(6)(g) of the Act states that no order for
registration shall be made if the court to which application for
registration is made is satisfied that the judgment debtor would
have a good defence if an action were brought on the judgment.
Nova Scotia
In Nova Scotia, according to Order XXXV, rule 38 of the Rules
of Practice:24″
In any action brought in this province against any person domiciled
therein, on a judgment obtained in an action in any other province or
country to which no defence was made, any defence which might have
been made to the original action may be made to the action on the
judgment.
that the defences raised were put on the record in the foreign action is not
a sufficient ground for striking them out as having been pleaded to em-
barrass or delay when the defendant had intended to defend the foreign
action, but owing to some misunderstanding was unable to be present at trial
and the judgment went against him by default.
239 Lesperance v. Leistikow, [1935] 3 W.W.R. 1, at p. 6, 43 Man. R. 322, [1935]
4 D.L.R. 125 reversing [1935] 2 W.W.R. 110 (C.A.).
24 o Callaghan v. Nicholls, [1921] 3 W.W.R. 476, 31 Man. R. 331; Lange v. Man.
West Colonization Co., [1921] 3 W.W.R. 877.
241 Hickey v. Legresley (1905), 1 W.L.R. 546, 15 Man. R. 304.
242British Linen Co. v. McEwan (1892), 8 Man. R. 99.
243 R.S.M., 1970, c. J20.
244 For an early statute, see S.N.S., 1880, c. 13, s. 27.
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This rule applies to actions on foreign judgments obtained by
default and when the defendant is domiciled in Nova Scotia at the
time the action is commenced in that province on the foreign judg-
ment. Domicile of the defendant in Nova Scotia at the time of the
original action is not necessary. 45 In Law v. Hansen, the Supreme
Court of Canada 240 refused to allow a Nova Scotia domiciliary to
rely on rule 38 to impeach a New York judgment on the merits
rendered against him when he was the one who brought the action
abroad.
Thus in spite of this statutory enactment a foreign judgment
in favour of the defendant is conclusive and may be used as a bar.
Prince Edward Island
In Prince Edward Island, Order 35 of the Rules of Court provides
that: 247
1. In any action against any person domiciled in this Province, on a
judgment obtained in an action in any other province or country to
which no defence was made, or to which a defence was made where
the original cause of action arose in this Province, any defence which
might have been made to the original action may be made to the action
on the judgment2 48
Saskatchewan – New Brunswick
In Saskatchewan 249 and in New Brunswick,250 the Foreign Judg-
ments Act declares that “Subject to the other provisions of this
Act, and for the purposes of this Act, a foreign judgment
is
conclusive as to any matter adjudicated upon and shall not be
impeached for any error of fact or law”.251 It must be noted how-
ever that the New Brunswick Act contains a section which provides
that a judgment does not of itself bar, in actions in the province,
2 45 Laird v. McGuire (1890), 40 N.S.R. 129.
246 (1896), 25 S.C.R. 69.
247For an early statute see S.P.E.I. 1869, c. 15, s. 5.
248See Mayhew v. Registrar of Motor Vehicles and Provincial Secretary of
Prince Edward Island (1964), 42 D.L.R. (2d) 477.
249R.S.S. 1965, c. 95, s. 5.
250 R.S.N.B., 1952, c. 90, s. 4.
2511n New Brunswick until 1950 when the Foreign Judgments Act was
adopted, S.N.B. 1950, c. 156, s. 6, it was provided by legislation that any foreign
judgment could be reopened if the defendant had not been personally served
within the territory of the original court; 1864, 27 Vict. c. 41, later C.S.N.B.
1877, c. 48, R.S.N.B. 1903, c. 137, R.S.N.B. 1927, c. 140; Shearer & Co. v. McLean
(1903), 36 N.B.R. 284 (C.A.); Star Kidney Pad Co. v. McCarthy (1880), 26 N.B.R.
107 (CA.); Int. Jobbers Ltd. v. Imperial Clothing Co. (1923), 50 N.B.R. 336,
[1923] 3 D.L.R. 601 (C.A.).
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RECOGNITION AND ENFORCEMENT
a “right or defence based on either law or fact which has accrued…
subsequent to the entering of such judgment”.25 2
Federal Legislation
It should also be noted that under the Foreign Aircraft Third
Party Damage Act 258 the merits of the foreign judgment may not
be reopened for execution.
The rejection of the conclusiveness rule by statute can no
longer be justified today. The Ontario statutory provisions are
the most offensive since they discriminate against Quebec judg-
ments only. They should all be repealed as historically they were
intended to favour Quebec judgments in specific situations at a
time when foreign judgments were not conclusive on the merits.
Now that at common law foreign judgments are conclusive, the
Ontario rules can no* longer achieve their original objective.
Merger
In Canada a valid and final personal domestic judgment will
have one or more of the following effects of res judicata: If in
favour of the plaintiff it merges the original cause of action, thereby
extinguishing the claim and substituting for it a new claim on the
judgment obtained. If on the merits and in favour of the defendant,
it bars a subsequent action on the claim. Regardless of whom
the judgment is in favour, it is conclusive as collateral estoppel in
a subsequent action between the parties on a different claim as
to issues actually litigated and determined in the former action,
and as direct estoppel in a subsequent action between the parties
on the same claim. These are some of the basic effects of domestic
judgments.
To what extent if at all do these effects differ when foreign
judgments are placed in issue in the forum?
i) Judgment in favour of the plaintiff
Where the plaintiff has secured a judgment in his favour in
the court of a foreign state or sister province, is he able to disregard
the decision and sue again on the original cause of action?
In contrast to the well-settled rule concerning judgments of
local origin, the prevailing view in the Anglo-Canadian system is
252 S. 8.
253 S.C., 1955, c. 15, s. 6.
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that the original cause of action is not merged in a judgment or
decree rendered in a foreign state or sister province in favour of
the plaintiff. The judgment creditor has thus the option of suing
either on the judgment itself or on the original cause of action 2 4
or on both, alternatively in the same action, until the foreign judg-
ment is satisfied. This has been called the non-merger rule. In
Smith v. Nichols 255 it was observed by Tindal CJ.:
If, then, the judgment has not altered the nature of the rights between
the parties, ,we want some authority to see that the plaintiff is to be
deprived of the remedy which every subject has of bringing his actions
in the courts here for the damages he has sustained. It appears to me
he has his option, either to resort to the original ground of action or
to bring an assumpsit on the judgment recovered.
The non-merger rule has been justified on the ground that a
foreign judgment is not technically a record and, therefore, not
a security of higher nature than the original claim.21′ Piggott
disagreed with this view. He said that the term “court of record”
has no other significance than that the acts and judicial proceedings
of the courts are retained for a perpetual record of their transactions,
and that any court with such characteristics is the equivalent of
a court of law. As courts of law of foreign states also have their
acts and judicial proceedings retained, the term “court of record”
should disappear. 257 He cites Houlditch v. Donegal2 8 where Lord
Brougham expressly made use of the phrase “foreign court of
record” as an authority to sustain his point of view. For Piggott
2 5 4 Clergue v. Humphrey (1900), 31 S.C.R. 66, affirming 27 O.A.R. 96 sub nom
Bugbee v. Clergue; Moritz v. Canada Wood Specialty Co. (1908, 17 O.L.R. 53,
at p. 62 (C.A.), aff’d 42 Can. S.C.R. 237; Metropolitan Trust and Savings Co.
v. Osborne (1909), 14 O.W.R. 135, aff’d 1 O.W.N. 785, 16 O.W.R. 226; Trevelyan
v. Myers (1895), 26 O.R. 430; Hutton v. Dent (1922), 52 O.L.R. 378, aff’d 53
O.L.R.105, 70 D.L.R. 582, aff’d [1923] S.C.R. 716, [1924] 1 D.L.R. 401; Barned’s
Banking Co. Ltd. v. Reynolds (1875), 36 U.C.Q.B. 256, at p. 289; Re McMillan
v. Fortier (1901), 2 O.L.R. 231; Monast v. Provincial Ins. Co., [1939] O.W.N. 113;
Fergus v. Wardlaw (1848), 5 N.B.R. 665 (CA.); Prudential Securities Ltd. v.
Sweitzer (1916), [ord. 10 O.W.N. 297 (C.A.)], 10 O.W.N. 200, 28 D.L.R. 361; State
Bank v. Benzanson (1914), 27 W.L.R. 812, 16 D.L.R. 848 (Alta); Grobe v. Buffalo
& Fort Erie Ferry and Railway (1916), 38 O.L.R. 272; U.S.A. v. Harden (1962),
36 D.L.R. (2d) 602, at p. 607 (B.C. C.A..), aff’d [1963] S.C.R. 366; Industrial
Acceptance Corp. Ltd. v. Stevenson (1963), 43 W.W.R. 126 (Sask.); Davidson v.
Sharpe, [1920] 1 W.W.R. 888, 60 S.C.R. 72, 52 D.L.R. 186, affirming [1919] 2
W.W.R. 76, 12 Sask. L.R. 183, 46 D.L.R. 256, which affirmed [1919] 1 W.W.R. 469.
255 (1835), 5 Bing (N.C.) 208, at p. 221.
256 For instance in Hall v. Obder (1809), 11 East 118.
257 Op. cit., 2d ed., p. 29.
258 (1834), 2 Cl. & Fin. 470.
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RECOGNITION AND ENFORCEMENT
the non-merger rule is based on the distinction between prima facie
evidence and conclusiveness. As originally foreign judgments were
only prima facie evidence of the debt, it was always possible for
the plaintiff to sue again on the original cause of action. Now
that they are held to be conclusive on the merits the non-merger
rule should be abandoned.
The reason why in Hall v. Obder25 9 it was said that a foreign
judgment is not a record and therefore not pleadable as a bar to
a new action, comes from the fact that early in the history of English
law a foreign judgment was treated as giving rise to a simple
contract debt from the defendant to the plaintiff. The liability of
the defendant arose upon an implied contract to pay the amount
of the foreign judgment. This approach was derived from the
distinction introduced by the Slade case in 1602, between the action
of assumpsit, a derivation of trespass on the case, and the action
of debtY60
It was held that an agreement to pay might be implied from
the existence of a debt, and assumpsit brought on this implied
agreement. Assumpsit by then had become very common in cases
where it was not an action on specialty or an action on a record.
To use the action of assumpsit as a remedy to enforce a foreign
judgment for a sum of money, it was necessary to find that the
defendant owed a debt to the plaintiff, that there was an implied
undertaking to pay the sum, and that the debt was a simple
contract debt. To meet these requirements, the courts used the
analogy of domestic judgments which were enforced by means of
an action of debt. The courts then ruled that in a foreign judgment
there was an implied contract to pay the amount of the judgment,
and that foreign courts were not courts of record for the purpose
of meeting the requirements of a simple contract debt.
This fiction that foreign judgments were implied contracts of
debt was used to facilitate their enforcement by the convenient
action of assumpsit. No substantive law was involved. It was purely
a procedural method that had developed from the Slade case and
concerned foreign judgments only.
The consequences were very important. As Dr. Read wrote: 26′
From the rule that a foreign judgment is not a judgment of a court
of record there logically followed two otherwise unexplainable rules. The
259 (1809), 11 East 118.
260 (1602), 4 Co. Rep. 91a, 92b, 76 E.R., 1072, 1074.
2 6 1 Op. cit., p. 116.
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first of these, as stated by Lord Mansfield in Walker v. Witter 262 was
that the money judgments of foreign courts, like courts in England not
of record, were examinable on the merits, being merely “prima facie”
evidence of the foreign cause of actions…. The second rule that followed
from the premise that a foreign judgment is not of record was one that
became firmly established in English law before the decision of Godard v.
Gray in 1870: A foreign judgment does not merge the original cause of
action.
Therefore, the non-merger rule did not originate as a corollary of
the prima facie rule, but as the direct consequence of the fact
that for purposes of procedure the foreign judgment was not
considered as proceeding from a court of record.
The non-merger rule has been uniformly followed in Canada in
spite of its inconsistency with the res judicata principle.20 3
There is one definite exception to the non-merger rule. If it
can be shown that the judgment in favour of the plaintiff has
been satisfied, no suit will lie for the recovery of any balance
alleged to be due by the plaintiff upon the original cause of action.20 4
ii) Judgment in favour of the defendant: Judgment as a bar
Where the foreign judgment is in favour of the defendant, the
plaintiff cannot sue again on the original cause of action. In such
a case if it is final and conclusive on the merits, the foreign
judgment is a complete answer to any proceedings in the domestic
courts by the plaintiff. It precludes him from further attempting
to recover on the original cause of action elsewhere.20 5 However a
foreign judgment in favour of the defendant is not a bar to a
subsequent action by the plaintiff on a cause of action which
although it arose out of the same transaction was not litigated
in the action in which such judgment was rendered.
The plaintiff having chosen the tribunal, he must be bound by
its decision, and the defendant must not lose the protection given
to him by the foreign court. This is a sound rule and has its source
in the res judicata principle. Yet it is highly inconsistent with the
non-merger rule.
262 (1778), 1 Doug 1, 6b.
263 See supra, footnote 46.
264 Barber v. Lamb (1860), 8 C.B. (N.S.) 95; Taylor v. Holland, [1902] 1 K.B.
676; see also Turcotte v. Dawson (1879), 30 U.C.C.P. 23 (C.A.).
265 Manolopoulos v. Panif-fe (1930), 1 M.P.R. 366, [1930] 2 D.L.R. 169 (N.S.
CA.) reversing [1929] 4 D.L.R. 48; McMillan v. Ritchie (1851), 7 N.B.R. 242
(CA.) see also Law v. Hansen (1895), 25 S.C.R. 69.
No. 1]
RECOGNITION AND ENFORCEMENT
The non-merger rule is a vestige of the common law procedure
and does not appear now to be logically necessary in view of the
obsolescence of the forms of action, nor is it defensible from the
point of view of economy of litigation and justice.
To support the non-merger rule it is said that by bringing an
action upon the original cause of action, the plaintiff waives the
advantage of a foreign judgment in his favour, and he might
lose everything without the power in certain cases to prove a
larger claim. On the other hand, on principle, it is difficult to
justify the non-merger rule. The plaintiff has submitted his claim
to a court of competent jurisdiction and that court has passed
on the claim. There seems no occasion for him to be allowed to
have the advantage of another attempt and to take up the time
of the court and compel the defendant again to prepare his defense.
As Dr. Read wrote: 266
The appropriate method of determining the desirability of the rule is
to weigh the considerations of general policy and logical consistency on
the one hand against the undoubted advantage which accrues to the
plaintiff on the other.
The non-merger rule is an anomaly which can only delay the
liberal evolution which is taking place in this field of conflict
of laws. The rule cannot be harmonized with the policies underlying
the res judicata doctrine and should be abandoned by Canadian
courts. Public policy dictates that there be an end to litigation
and that matters once tried be considered forever settled as between
the parties. This doctrine which is a basic tenet of the common
law should not suffer an exception in the case of foreign judgments
in favour of plaintiffs, especially where this exception is based on
obsolete procedural rules. Old common law rules of procedure
should give way to broader principles of equity and justice. The
application of the non-merger rule affords perhaps a unique
example of public policy set at naught by an outmoded procedural
rule. It should certainly be eliminated in order to let the merger
rule prevail in all situations. This would remove the illogical
differences which exist between a judgment for the plaintiff and
a judgment for the defendant and restore the principle of res
judicata as the only true, reasonable and workable theoretical
and practical basis for a consistent system of recognition and
enforcement of foreign judgments.
266 Op. cit., p. 120.
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Res judicata
A problem demanding careful analysis is posed by the res judicata
principle. Where the plaintiff seeks to enforce a foreign judgment
in his favour, is the conclusive nature of this judgment a consequence
of the res judicata? Does the same principle apply in the case
of a plaintiff, unsuccessful before the court of another country,
who sues on the original cause of action, and where the prior
adjudication in favour of the defendant is raised as a defense to
defeat the plaintiff’s action?
It is commonly held that res judicata operates both as a merger
and as an estoppel, and this interpretation covers the two results
of the res judicata doctrine: The first consequence has been stated
in the maxim nemo debet bis vexari, which prevents a subsequent
attempt to invoke the aid of the courts over the same issue, the
judgment having merged the original cause of action. Beale 2T
rejects this consequence on the ground that it has nothing to do
with conflict of laws, while Dr. Read contends that it is irrelevant
to the non-merger rule.2 8
As to the second consequence of res judicata, it is held that
when a question is litigated, the judgment of the court is the
final determination between the parties and their privies and any
right, question, or fact once determined by a court of competent
jurisdiction cannot be retried in a subsequent suit between the
same parties or their privies even though technically for a different
cause of action (the enforcement of the foreign judgment); the
right, question, or fact is conclusively established so long as the
original judgment remains valid in the country where it was
first rendered. It is with this corollary of res judicata that the
theory of the conclusiveness of a foreign judgment is consistent,
an interpretation which also applies when the judgment is used
as a bar by the successful defendant to an action by the plaintiff
on the original cause of action. In other words, in theory, the
foundation of the doctrine of estoppel by res judicata lies not only
where the prior decision is set up as a bar to an action by the
unsuccessful plaintiff, but also where an action is brought on
the prior decision for the purpose of preventing the unsuccessful
defendant from disputing this former decision on the merits. There-
fore, it can generally be said that a foreign judgment used to
establish the basis of the plaintiff’s right is as unimpeachable as a
foreign judgment pleaded as a defense.
267 The Conflict of Laws (1935), s. 450. 1.
268 Op. cit., p. 120.
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RECOGNITION AND ENFORCEMENT
Dr. Read 269 does not agree with this conception of res judicata
and in opposition to Piggott 270 maintains that res judicata is not
the rationale for the recognition of the conclusive nature of foreign
judgments. For this author, as it has already been noted, a foreign
judgment cannot be recognized as the consequence, in the technical
sense, of the res judicata doctrine as it applies to judgments of
local courts. A foreign judgment merely “proves the fact that a
vested right has been created through the judicial process by the
law of a foreign law district”. It follows that:271
This conclusiveness although akin in effect to res judicata does not spring
from that doctrine but inevitably from the doctrine that the existence
of the right created by a foreign judgment is in itself a sufficiently im-
pelling reason for its recognition. The foreign court having jurisdiction,
the right created by it should be treated as inviolate elsewhere.
This conclusiveness rule and the res judicata doctrine are both con-
sistent with the considerations of policy on which the latter is founded:
Interest reipublicae ut sit finis litiurn and Nemo debet bis vexari eadarn
cause. That rule and that doctrine should not, however, for this reason or
any other, be confused, although or just because they reach approximately
the same result in their several fields of operation.
It seems that the conclusiveness doctrine needs no help from
the vested right or legal obligations doctrine. It stems directly
from the res judicata rule. A foreign judgment will be given either
the force of res judicata which it possessed in the foreign country
or the force of the res judicata of the forum.27 It will be res judicata,
either absolutely or in some modified form as a domestic judgment
and therefore conclusive on the merits. The conclusiveness rule
appears to be a logical consequence of the fact that the foreign
judgment is received by the courts of the forum as res judicata,
both the plaintiff and the defendant being bound by it. All the
forum can do or should do is to examine whether the foreign
court had jurisdiction to render the judgment. Once this is done
the foreign judgment is res judicata and should not be reviewed
on the merits. It is recognized and will be ready for enforcement.
Policy considerations dictate that there be an end to litigation,
that those who have contested an issue shall be bound by the
result of the contest and that matters once tried shall be considered
forever settled as between the parties. The policy behind res judicata
applies to all judgments whether local or not and should apply
269 Op. cit., p. 121.
270 Op. cit., 2d ed., pp. 32, and 36.
271 Op. cit., p. 111.
272 See Law v. Hansen (1895), 25 S.C.R. 69, at p. 72.
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whether such judgments are for the plaintiff or for the defendant.
In other words, res judicata is the only reasonable principle which
can be invoked in order to favour recognition and enforcement of
foreign judgments.
In this field of the law of conflict of laws, an historical analysis
discloses a steady evolution towards an avowed application of
the res judicata rule. At first the domestic courts were distrustful
of foreign decisions. They expressed
this distrust by devising
technical as well as theoretical ways for reducing the number of
enforceable foreign judgments to a trifling minimum. With the
development of international commerce, as well as a better knowl-
edge of foreign legal systems, these doctrines and techniques gave
way to more progressive ones such as conclusiveness, and vested
rights. Today the trend is toward assimilation of the foreign judg-
ment to the domestic judgment. Once this is fully accomplished,
the doctrine of res judicata will apply in all its magnitude as it
should have right from the beginning. Judges cannot escape applying
one of the most fundamental principles of the Roman law: res
judicata pro veritate accipitur. For the lawyer the most significant
aspect of this point lies in its procedural implications. It is safe
to say that despite the different and contradictory explanations
of these two means of using a foreign judgment, and despite the
anomaly of the non-merger rule, when a foreign judgment is held
conclusive or when it is used as a bar to a subsequent action, it
produces the same results as a domestic judgment under similar
circumstances.
Conclusion
The constant tension which exists between the principles of the
autonomy and sovereignty of the domestic system and the necessity
to recognize the existence of foreign legal systems as an indis-
pensable condition for the expansion of international trade, has
greatly influenced the development of the rules concerning the
recognition and enforcement of foreign judgments. To give effect
to a foreign judgment implies the recognition of a foreign legal
system in all its institutional elements. When a creditor secures a
judgment abroad, it means that he has successfully invoked the
foreign jurisdiction, proven his case, and that the proper law has
been applied and the correct procedure followed until a final
judgment has been rendered. The foreign legal system has manifested
itself in a most complete manner. The creditor should then be able
to seek the enforcement of his judgment in any other jurisdiction.
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RECOGNITION AND ENFORCEMENT
This is so clear that it is difficult to understand why he has not
been allowed to do so, since in the Anglo-Canadian system the
doctrine and jurisprudence hold that a foreign judgment has no
direct operation. It must be declared executory by the courts.
The reasons for this attitude are numerous. The local sheriff
cannot enforce a title which he cannot verify or perhaps even under-
stand. Foreign money judgments are usually executed on the proper-
ty of the debtor which is located within the jurisdiction of the
enforcing court and thus they affect the domestic economic order.
This cannot be tolerated without some sort of control. The local
judge exercises that control and this raises the whole problem
of the recognition of the foreign legal system with all its implications.
One can then understand why the enforcing judge is afraid
to readily grant an executory character to foreign judgments.
Sovereignty forces him to curb down the full operation of foreign
legal systems in the forum. He sets up conditions which have to
be met before any effect is to be given to foreign judgments, and
even may go so far as to reopen the merits of the case, thereby
refusing to recognize the existence and validity of foreign legal
systems.
The difficulty which confronts the courts is to determine how
much control should be exercised over foreign judgments if a
balance is to be reached between the dictates of sovereignty and
the necessities of international trade. It is also necessary to justify
any solution from a theoretical point of view. The recognition and
enforcement of foreign judgments cannot be based on pure theory,
but rather on a public policy which takes into account not only
the fact that there must be an end to litigation, but also the economic
and social requirements of the forum. Rules of law must be in
harmony with economic and social factors if they are to operate
successfully. To deny effect to a foreign judgment destroys security
in international transactions, as private relations generally ignore
national boundaries. Also in certain cases the enforcing court may
not have jurisdiction over the original cause of action or the parties.
On the other hand, to directly enforce foreign judgments is dan-
gerous in a world where concepts of justice are by no means
uniform and where jurisdiction may have been acquired over an
absent defendant who has never had any notice or knowledge
of the suit against him.
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5) Defences available to the defendant
a) Fraud in procuring the foreign judgment
It is well established that fraus omnia corrumpit. Any judgment
domestic or foreign obtained by fraud can be impeached.273 This
was emphasized by Chief Justice de Grey in the Duchess of Kingston’s
case in the following words:-7 4
Fraud is an extrinsic collateral attack which vitiates the most solemn
proceedings of courts of justice. Lord Coke says it avoids all judicial acts,
ecclesiastical or temporal.
The law of the forum will determine whether there has been
fraud which will vitiate a foreign judgment.
The fraud which vitiates a foreign judgment may proceed either
from the conduct of the party in whose favour it is obtained or
from the actions of the foreign court.
a) Fraud on the part of the party in whose favour the foreign
judgment was obtained
Canadian and English courts recognize that a foreign judgment
can be impeached for fraud perpetrated upon the court which
rendered it. The difficulty lies in defining the extent to which the
fraud does not defeat the rule that foreign judgments are conclusive
on the merits. There is no accord as to what kind of fraud is suf-
ficient to vitiate a foreign judgment: what sort of evidence is
admissible to invalidate a foreign judgment.
Dr. Read clearly states the problem: “Are both the policy in
favour of res judicata and the policy against fraud to be given due
effect or is the latter to be allowed to prevail? Must the fraud
be limited to those aspects of foreign judgments which are in no
wise res judicata such as the international jurisdiction of the
foreign court and facts extrinsic to the record of that court, or
may the forum in the action where fraudulent procurement of a
foreign judgment is alleged, go so far in its search for such fraud
273 Ochsenbein v. Papelier (1873), L.R. 8 Ch. 695; Abouloff v. Oppenheimer
(1882), 10 Q.B.D. 295 (C.A.); McLean v. Shields (1885), 9 O.R. 699
(C.A.);
Woodruff v. McLennan (1887), 14 O.A.R. 242 (C.A.); Vadala v. Lawes (1890),
25 Q.BJ). 310 (C.A.); Jacobs v. Beaver (1908), 17 O.L.R. 496 (C.A.); Nevay v.
Gillis (1910), 8 E.L.R. 273 (N.S.); Manopoulos v. Paniffe (1930), 1 M.P.R. 366;
Syal v. Heyward, [1948] 2 K.B. 443, Cowan (1949), 65 L.Q. Rev. 82, Graveson
(1949), 12 Mod. L. Rev. 105.
274 (1776), 2 Sm. L.C. 644 (13th ed.).
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RECOGNITION AND ENFORCEMENT
as to retry the merits of the original action upon exclusively the
same evidence as was before the foreign court?”2 75
A distinction has been drawn between extrinsic and intrinsic
fraud. Intrinsic fraud which involves matters going to the existence
of the cause of action is not a defense to the judgment. To allow
it would infringe the principle of res judicata. For example, a
foreign judgment based on a contract obtained by fraud will not
be impeached on this ground. On the other hand, fraud extrinsic
to the matter tried will vitiate a foreign judgment. If the acts or
facts that mislead the foreign court as to the merits are extrinsic
to the record, that is form no part of the record, the judgment
can be set aside. Extrinsic fraud must have deprived the aggrieved
party of an adequate opportunity to present his case to the court.
In England the courts have been very liberal. They have reopened
the case whether the alleged fraud was extrinsic or intrinsic, and
despite the fact that the fraud was or might have been alleged in
the foreign proceedings, or in fact was investigated in the foreign
court and dismissed, or that the evidence on which the allegation
of fraud is based was available before the date of rendition of the
foreign judgment. A judgment may be attacked for fraud, if it
was rendered upon false testimony or false evidence given by the
plaintiff in the original court, though this involves a reexamination
of the merits of the case.
In Abouloff v. Oppenheimer2 76 the foreign court was held to
have been misled as to the merits of the case, because the mis-
leading acts were extrinsic to the record. The plaintiff had obtained
in a Russian court, a judgment against the defendants ordering
the latter either to deliver to the plaintiff certain goods belonging
to him and alleged to be in the possession of the defendants or
to pay the plaintiff a certain sum. The judgment, which was
affirmed on appeal by the High Court of Tiflis, Russia, was obtained
by the fraud of the plaintiff who falsely swore that at the time
the action was brought, the goods were in the defendant’s possession
when in fact they were in his possession. In England, the judgment
was held to have been secured by fraud and its enforcement refused.
The court said that in an action on a foreign judgment, where the
defendant alleges that it was obtained by fraud, even though there
was no allegation of any new relevant facts which were not proved
in the earlier foreign action, the forum can retry the very question
of fact which was the issue in the original action. Apparently, the
275 Op. cit., p. 273.
276 (1882), 10 Q.B.D. 295.
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vitiating influence of fraud prevailed over the doctrine of con-
clusiveness or res judicata. In an action on a foreign judgment:
“Where the fraud has been successfully perpetrated for the purpose
of obtaining the judgment of a Court, it seems to me fallacious
to say, that because the foreign court believes what at the moment
it has no means of knowing to be false, the court is mistaken and
not misled; it is plain that if it had been proved before the foreign
court that fraud had been perpetrated with the view of obtaining
its decision, the judgment would have been different from what
it was. ‘2 77 Lord Justice Brett declared: “I will assume that.., the
defendants gave the very same evidence in support of the charge:
I will assume even that the defendants gave the very same evidence
which they propose to adduce in this action; nevertheless
the
defendants will not be debarred at the trial of this action from
making the same charge of fraud and from adducing the same
evidence in support of it; and if the High Court of Justice is satisfied
that the allegations of the defendants are true, and that the fraud
was committed, the defendants will be entitled to succeed in the
present action. ‘278
It follows that in England the existence of fraud in the pro-
ceedings, against which the injured party might have protected
himself at the trial, may be urged successfully to avoid the foreign
judgment. There may be a retrial of the merits, not because the
foreign court came to a wrong conclusion, but because it was
fraudulently misled into coming to a wrong conclusion.
This theory contradicts a previous line of decisions. Piggott”‘0
points out that the rule laid down in Abouloff v. Oppenheimer is
opposed to Lord Campbell’s opinion in Bank of Australasia v. Nias280
to the effect that where fraud was involved in the issue before
the foreign court, a defense setting up this fraud in an action on
the judgment is bad because it would amount to reopening the
merits of the case. However it was reaffirmed in Vadala v. Lawes28
In this case the plaintiff brought an action in Sicily against the
defendant to recover money alleged to be due on certain bills of
exchange. The plaintiff obtained a judgment against the defendant
by fraudulently representing in the Italian court that the bills of
exchange were given under the authority of the defendant and
277 Per Lord Coleridge, at p. 303.
278 Ibid., at p. 306.
279 0 p. cit., 3rd ed., Pt 1, pp. 387, 395.
280 (1851), 20 LJ. Q.B. 284.
281 (1890), 25 Q.B.D. (CA.) 310.
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RECOGNITION AND ENFORCEMENT
for mercantile transactions whereas they were given without the
defendant’s authority for gambling debts. The judgment was
declared invalid in England. The defense of fraud had been tried
on its merits by the Italian court and a judgment for the plaintiff
had been entered; yet the English court reopened the entire case.
Lord Justice Lindley said:
If the fraud upon the foreign court consists in the fact that the plaintiff
has induced that Court by fraud to come to a wrong conclusion, you
can re-open the whole case even although you will have in this Court
to go into the very facts which were investigated, and which were in
issue in the foreign Court. The technical objection that the issue is the
same is technically answered by the technical reply that the issue is not
the same because in this Court you have to consider whether the foreign
Court has been imposed upon. That, to my mind, is only meeting a
technical argument by a technical answer, and I do not attach much
importance to it; but in that case the Court faced the difficulty that
you could not give effect to the defence without re-trying the merits.
The fraud practised on the Court, or alleged to have been practised on
the Court, was the misleading of the Court by evidence known by the
plaintiff to be false.282
Read 2
8 points out that “That is true, narrowly speaking, but
it is also axiomatic that the question of credibility of witnesses,
whether they are misleading the court by false testimony, has to
be determined by the tribunal in every trial as an essential issue,
decision of which is a prerequisite to the decision of the main
issue upon the merits. A judgment on the merits necessarily, there-
fore, involves res judicata of the credibility of the witnesses in so
far as the evidence which was before the tribunal is concerned.
Thus, when the allegation is made that a foreign judgment is vitiated
because the court was fraudulently misled by a perjury, and issue
is taken with that allegation, if the only evidence available to support
the allegation is that which was before the foreign court, to hear
it will amount simply to a retrial.., in Abouloff v. Oppenheimer
no such issue was taken; the party alleged to have misled the
foreign court by false evidence admitted the allegation by his
demurrer. The fact so admitted to be true was material to the
question of fraud, and extrinsic to the facts which were proved and
adjudicated upon in the foreign court.”
An attempt was made to reconcile Abouloff and Vadala on the
grounds that the question whether the foreign court was misled,
was not as to the facts in the record, in issue, and was not decided
upon by the foreign court. The only issue before the court is
282 Pp. 316-317.
283 Op. cit., p. 278, note 32.
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whether or not the foreign judgment was fraudulently obtained.
However, this kind of reasoning was termed by Dr. Read a resort
to a narrowly technical hocus pocus to enable Lord Brett to pretend
that he was not violating the res judicata doctrine.
Again in Ellerman Lines v. Read 284 the court approved a retrial
on the merits. In Syal v. Heyward215 renewed strength was given
to the doctrine of Abouloff v. Oppenheimer by permitting the
allegation of fraud discovered by the defendant at the time of the
trial and not then objected to by him. The plaintiff obtained a
judgment in undefended proceedings in an Indian court in 1947
on a complaint in which he alleged that he had lent the defendant
20,000 roupies. Later in 1949 the judgment was registered under
the English Act of 1933286 as a judgment in the King’s Bench
Division. The defendant applied to have the registration set aside
under section 4(1) (a) (IV) on the ground that the plaintiff deceived
the court of India since the amount was in fact 10,800 roupies, the
total of 20,000 having been obtained by addition of commissions
and interests that the defendants alleged to have paid in advance.
The Master dismissed the application because all the facts on
which the defendants relied could have been raised by way of
defense in the Indian proceedings. On appeal, the judge directed
an issue of fraud to be tried on condition that the defendant paid
into the court the amount of the judgment debt. On further appeal,
the Court of Appeal held that the defendants were entitled to
have an issue of fraud tried and that the judge had no power to
impose the condition of payment into the court. The plaintiff
argued that where it was sought to have a judgment set aside
on the ground of fraud, the fraud must have been discovered by
the applicants since the date of the judgment and that it was
clear that the defendants knew that they were being sued in
respect to the loan of a sum considerably greater than that which
they alleged had been lent. However, the court held that it was
immaterial whether or not the facts relied on to establish a prima
facie case of fraud were known to the party relying on them
at all material times and could therefore have been raised by way
of defense in the foreign proceedings.
Dean Read considers that there is no justification for reopening
the merits and that the plea of fraud should be available only to a
defendant in cases where the court is induced by fraud to assume
284 [1928] 2 K.B. (CA.) 144.
285 [1948] 2 K.B. 443 (CA.); [1948] 2 All E.R. 576.
28623 & 24 Geo. 5, c. 13.
No. 1]
RECOGNITION AND ENFORCEMENT
jurisdiction, or where the foreign court was misled as to the merits
if the misleading acts or facts were extrinsic to the record .
87
Not all Canadian courts have followed the English cases. Some
courts have held that a foreign judgment can only be impeached
for fraud if new evidence of a decisive character has been discovered
since the trial. Where fraud is raised as a defence and there is
no allegation of relevant facts which were not proven in the foreign
action, the enforcing court cannot try over again the very question
of fact which was in issue in the original action.
In Woodruff v. McLennan 8 which involved an action upon a
Michigan judgment in a suit brought in that State to recover pay-
ment for certain services under a logging contract, the defence
was that the plaintiff fraudulently misled the foreign court by
perjury, and it was sought to show the falsity of the plaintiff’s
statements by the evidence of certain witnesses. The Court of
Appeal of Ontario held that this evidence was properly rejected.
The whole evidence on the original trial was fully before the
attention of the Michigan court, and what the defendants were
proposing was to try over again the question which was in issue
in the original action. The charge of fraud was superadded.
Patterson J. said:
It seems to me impossible to deny that what the defendants propose to
do is to try over the very question which was in issue in the original
action.289
With respect to Lord Brett’s dicta in the Abouloff case, he re-
marked:
It is not said that even a charge of fraud will warrant the Court in
trying over again the same issue that was tried in the original action;
but it is said that the question whether the original court was or was
not misled cannot have been an issue there. I confess my inability to
follow this distinction without understanding the word ‘issue’ in what
seems to me too narrow or technical a sense. Take the extreme case of
alleged perjury committed by the plaintiff in giving his evidence upon the
material question in controversy between him and his adversary. The issue,
in substance and reality, though perhaps not in technical form –
if, indeed,
technical forms can now be said to exist in our procedure –
is the truth
or falsehood of what the plaintiff swears to.2 90
The court held that Abouloff v. Oppenheimer was inapplicable.
If the defendant had sought to introduce evidence discovered after
the Michigan trial to prove that the plaintiff’s testimony in the
287 op. cit., p. 273.
288 (1887), 14 OA.R. 242 (C.A.).
289 p. 249.
290 P. 252. See also per Duff, J. in MacDonald v. Pier, [1923] S.C.R. 107, at
p. 121.
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original action was false it would have been admitted in the Ontario
action. In the light of the new evidence the court could, if necessary
reexamine the merits of the case. This decision was not followed
in the Queen’s Bench Division of the High Court of Ontario in
Hollender v. Ffoulkes.2 91 The court preferred the reasoning of
Vadala v. Lawes decided after the Woodruff case. Armour C.S.
quoted Lindley L.J. in Vadala v. Lawes who referred to Abouloff
v. Oppenheimer, as follows:
I cannot fritter away that judgment, and I cannot read the judgments
without seeing that they amount to this: that if the fraud upon the foreign
Court consists in the fact that the plaintiff has induced that Court by
fraud to come to a wrong conclusion you can reopen the whole case even
although you will have in this Court to go into the very facts which were
investigated, and which were in issue in the foreign Court … Not only
where there has been a fraud on the Court by what is called extrinsic
… but where the plaintiff has obtained judgment by the
circumstances,
use of perjured evidence, that is such a fraud as would enable the de-
fendant to impeach the foreign judgment.
He then decided that it was a good defence to an action on a foreign
judgment that the order for judgment was obtained upon a false
affidavit, the plaintiffs fraudulently concealing from the court the
true nature of the transactions between them and the defendant.
Street J. in Johnston v. Barkey 12 was of the same opinion and
refused to draw a distinction between the fraud which consists
in presenting perjured evidence to the court and that which is
collateral to the merits of the case. However he recognized that
the wide doctrine followed by the English courts impairs to a
considerable extent the finality of all foreign judgments23 3
In Anderson Produce Co. v. Nesbitt,2 4 the court cited Hollender
v. Ffoulkes, and said that the evidence of fraud must be of such
clear and convincing character that the conclusion from it is
irresistible that the foreign court was not merely mistaken, but
was actually misled by the fraud practised upon it, into pronouncing
a judgment. In this case the evidence adduced fell short of this.
Clear and convincing evidence of fraud is required.&2 5
291 (1895), 26 O.R. 61 (CA.). See also (1895), 16 P.R. 175.
292 (1905), 10 O.L.R. 724 (domestic case).
293 See also obiter dictum in May v. Roberts, [1929] 2 W.W.R. 449, 41 B.C.R.
185, [1929] 3 D.L.R. 370, at pp. 371-372; Locke v. Hulett, [1929] 3 D.L.R. 572,
at p. 575, [1929] 2 W.W.R. 558 (Alta).
294 (1903), 2 O.W.R. 430, 1 O.W.R. 818.
295 See also MacDonald v. Pier, [1922] 1 W.W.R. 1208, 17 Alta L.R. 401, 63
D.L.R. 577, aff’d, [1923] 1 W.W.R. 376, [1923] S.C.R. 107, [1923] 1 D.L.R. 670.
And Boga v. Chamberlen (1936), 9 M.P.R. 565 (N.S.), [1936] 1 D.L.R. 660
where it was held that a strong case must be made out.
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RECOGNITION AND ENFORCEMENT
However in Jacobs v. Beaver,296 the Ontario Court of Appeal,
explained and approved Woodruff v. McLennan. Garrow J9
distinguished between evidence discovered after the trial of the
original action, and evidence which could have been properly
introduced in defense in that action. He said:
The fraud relied upon must be something collateral or extraneous and
not merely the fraud which is imputed from alleged false statements made
at the trial which were met by counter statements by the other side and
the whole adjudicated upon by the court and so passed on into the limbo
of estoppel by the judgment; this estoppel cannot be disturbed except
upon the allegation and proof of new and material facts which were not
before the former court and from which is to be declared the new propo-
sition that a former judgment was obtained by fraud.
In Johnston v. Occidental Syndicate Limited,298 it appeared that
the plaintiff in the original action had a claim for services and
advances made and that there was some doubt whether it was
against the defendants or against another affiliated company. Judg-
ment was obtained in summary proceedings in the foreign court.
The defendants contended that the foreign judgment was obtained
by fraud. Applying the principles stated by Garrow J. in Jacobs v.
Beaver, the court held that since the foreign court had passed
on the question of the identity of the debtor it could not be tried
again. Whether its judgment should be reopened was for the foreign
court to decide.2 99
Thus, in Ontario Jacobs v. Beaver seems to represent the correct
approach to the problem of fraud. Despite the abhorrence with
which the common law regards fraud, the courts will not relitigate
the issues disposed of in the foreign suit. As Duff J. pointed out
in MacDonald v. Pier:00
… one is constrained to the conclusion upon an examination of the
authorities that there is jurisdiction in the court to entertain an action
to set aside a judgment on the ground that it has been obtained through
perjury. The principle I conceive to be this; such jurisdiction exists but
in the exercise of it the court will not permit its process to be made use
of and will exert the utmost care and caution to prevent its process being
used for the purpose of obtaining a re-trial of an issue already determined,
of an issue which transivit in rem judicatum, under the guise of impugning
(1908), 17 O.L.R. 496, 12 O.W.R. 803 (CA.).
20
297 P. 506.
298 (1911), 20 O.W.R. 67, 3 O.W.N. 60 aff’d sub nom McDougall v. Occidental
Syndicate Ltd., 22 O.W.R. 478, 3 O.W.N. 1384, 4 D.L.R. 727 (CA.).
299See also Manolopoulos v. Paniffe (1930), 1 M.P.R. 366, noted H. E. Read
(1930), 8 Can. Bar Rev. 23 (judgment relied upon by the defendant and
attacked by the plaintiff).
300 [19233 S.C.R. 107, domestic case, at pp. 120-121.
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a judgment as procured by fraud. Therefore the perjury must be in a
material matter and therefore it must be established by evidence not
known to the parties at the time of the former trial.
Where a foreign judgment is set up by way of defence, the
issue of fraud may equally be raised by the plaintiff.8 0′
The approach taken by the Ontario Court of Appeal which
limits the defense of fraud to cases where the defendant was
deprived of an adequate opportunity to present his case to the
foreign court, and when the facts which constituted the fraud
came to his knowledge after the original proceedings so that he
had no possibility of reopening the case abroad is consistent with
the doctrine of obligation and the rule of conclusiveness of foreign
judgments.
There must be no retrial of an issue already determined under
the guise of impugning a judgment for fraud. Actually the best
justification for the English approach is that the defense of fraud
is based on the broad principle that no person should be able to
take advantage of his own wrong.30 2
Fraud in obtaining jurisdiction over the defendant is a good
ground of defense against the enforcement of the foreign judgment.
The courts believe that facts which relate to jurisdiction are so
important that they should always be open to attack on the ground
of their falsity. This rule applies even if the foreign court has
declared itself competent upon trial of this issue. This attitude has
been influenced by the theory that the validity of a foreign judg-
ment can always be questioned for lack of jurisdiction in the
foreign court.
301 Miller v. Purdon (1923), 24 O.W.N. 328. And see Manolopoulos v. Paniffe
(1930), 1 M.P.R. 366 (N.S.), where the plaintiff in the foreign action attacked
the validity of a judgment rendered in favour of the defendant.
3021n Turcotte v. Dawson (1879), 30 U.C.C.P. 23 (CA.), Wilson, C.J. said, at
p. 28: “The defendant is… precluded from going into the merits of the
original action by reason of the appearance which he made in that action;
but, if after that appearance, he gave the mortgage he has pleaded in satis-
faction and discharge of that action and of all damages and costs in respect
thereof, either in payment or in satisfaction and discharge, which the plaintiff
accepted, and the plaintiff after that payment or satisfaction proceeded with
the action without notice to the defendant or knowledge by him, and contrary
to good faith, and in fraud of the defendant, it may be that the judgment so
recovered would be contrary to natural justice, or a fraud, and the defendant
should be allowed to plead such fact.”
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Thus in Biggar v. Biggar303 it was held that where a party has
adduced false evidence to show that the court had jurisdiction
over him this will invalidate the foreign judgment.
4
Fraud on the part of the foreign court giving the judgment
When the foreign court acted in a fraudulent manner, for
instance, if the foreign judges were interested in the property
in dispute or were bribed, the decision will be disregarded3 05
The allegation and proof of fraud must be specific and precise,
and a mere allegation of notorious corruption in all the courts
of the foreign country is ineffective.30 6
According to Piggott the kind of fraud Martin B. had in mind,
when he stated in Cammell v. Sewell30o that a foreign judgment
could be avoided for fraud on the part of the foreign court in
giving the judgment, was a “wilful error in facts, law or procedure”,
including wilful disregard of English law as well as wilful disregard
of any other important element in the consideration of the case 0 8
In other words, a violation of the general principles of natural
justice may constitute fraud, bearing in mind that error is not fraud
unless it is wilful. Therefore, “the weight of authority is in favour
of refusing to acknowledge the foreign judgment when there has
been a wilful disregard of either law or procedure, such disregard
being held to be tantamount to fraud on the part of the court”.,0 9
The party setting up the wilful error must show that the applicable
law was clearly put before the foreign court which rejected it with
the intent of doing wrong.
Conclusion
It is submitted that the plea of fraud should only be available to
the defendant when, as a result of the fraud, he was deprived of an
303 [1930] 2 D.L.R. 940, 42 B.C.R. 329.
3 04 The husband who was anxious to obtain a decree of divorce in Oregon
had pretended that he was domiciled in that State when he was in fact
domiciled in British Columbia. See also R. v. Wright (1877), 17 N.B.R. 363
(C.A.); Delaporte v. Delaporte (1927), 61 O.L.R. 302, [1927] 4 D.L.R. 933; Bavin
v. Bavin, [1939] O.R. 385 (C.A.); Rothwell v. Rothwell (1942), 50 Man. R. 249,
[1942] 4 D.L.R. 767.
30Price v. Dewhurst (1837), 8 Sim. 279.
30 Abouloff v. Oppenheimer (1882), 10 Q.B.D. 295; Price v. Dewhurst (1837),
8 Sim. 279.
307 (1858), 27 LJ. Ex. 447.
308 Piggott,op. cit., 3rd ed., p. 113. See section on natural justice.
309 P. 115.
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[Vol. 17
adequate opportunity to present his case to the foreign court,
and the facts which constituted the fraud came to his knowledge
after the proceedings and he could no longer appeal the foreign
decision. Res judicata should not prevail under all circumstances.
If the question of fraud were raised before the foreign court or on
appeal in the foreign country, and it was decided that no fraud
had been committed, or if it could have been pleaded in the foreign
court, the unsuccessful party should not be able to raise the ques-
tion again in the forum.
b) Natural justice
Canadian courts generally state that a foreign judgment may be
impeached if the proceedings in which it was obtained were con-
trary to the principles of natural justice 10 In spite of the fact that
the expression “contrary to natural justice” has frequently been
before the courts, it is still sadly lacking in precision. At one time
it was regarded as setting up for foreign jurisdictions a standard
of judicial correctedness upon the pattern of the enforcing court.81′
Later on it was thought that the expression, when applied to
the procedure of foreign courts, was regarded as being no more
than a test by which to decide whether the foreign court was a
court of competent jurisdiction or not, whether it had so sum-
310 Shearer & Co. v. McLean (1903), 36 N.B.R. 284 (C.A.); Frederick A. Jones,
Inc. v. Toronto General Ins. Co., [1933] O.R. 428, [1933] 2 D.L.R. 660 (C.A.);
Barned’s Banking Co. Limited v. Reynolds (1875), 36 U.C.Q.B. 256, at p. 273;
Re Reciprocal Enforcement of Judgments Act; Wigston v. Chowen (1964), 49
W.W.R. 543 (Sask.); McLean v. Shields and Leacock (1885), 9 O.R. 699; Bugbee
v. Clergue (1900), 27 OA.R. 96, 20 C.L.T. 57 aff’d sub nom., Clergue v. Humphrey
31 S.C.R. 66, 21(B) C.L.T. 136; Hughes v. Sharp (1969), 68 W.W.R. 706 (B.C.C.A.),
revising 66 W.WR 103, 70 D.L.R. (2d) 298; Romano v. Maggiora, [1935] 2 W.W.R.
524, 50 B.C.R. 66; Wanderers’ Hockey Club v. Johnson (1913), 5 W.W.R. 117, 25
W.L.R. 434, 18 B.C.R. 367, 14 D.L.R. 42; British Linen Co. v. McEwan (1892),
8 Man. R. 99 (CA.); Delaporte v Delaporte (1927), 61 O.L.R. 302; Rothwell v.
Rothwell, [1942] 3 W.W.R. 442, 50 Man. R. 249; Beaty v. Cromwell (1883), 9
P.R. 547; Bavin v. Bavin et al. [1939] O.R. 385, varied at p. 390; Turcotte v. Daw-
son (1879), 30 U.C.C.P. 23, at p. 28; Burchell v. Burchell (1926), 58 O.L.R. 515,
at p. 523. In England see Pemberton v. Hughes, [1899] 1 Ch. 781 (CA.), per
Lindley, M.R., at p. 790; Scarpetta v. Lowenfeld (1911), 27 T.L.R. 509, per
Lawrence, J., at p. 510; Bater v. Bater otherwise Lowe, [1906] P. 209 (C.A.),
per Romer, LJ., at p. 237; or “universal justice” Douglas v. Forrest (1828), 4
Bing 686, per Best, C.J., at pp. 700-1; “or substantial justice” Formosa v. For-
mosa, [1963] P. 259; Lepre v. Lepre, [1965] P. 52 and Middleton v. Middleton,
[1966] 2 W.L.R. 512 and (1966), 82 L.Q. Rev. 314, at p. 315.
311 Buchanan v. Rucker (1807), 1 Camp. 63, at p. 66; see also Simpson v.
Fogo (1863), 1 H. & M. 195, at p. 225.
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RECOGNITION AND ENFORCEMENT
moned the defendant before it as to give it the right, in the eyes
of the enforcing court, to proceed in its own way to pass subse-
quent judgment upon him. The defense that the foreign judgment
was obtained in a manner contrary to natural justice was narrowed
down to the question of wrongful assumption of jurisdiction over
absent defendants. 12
In other words, had the foreign tribunal personally summoned
the defendant to appear before it? This does not seem to be tena-
ble today. Even in the absence of personal service, the foreign court
may have had jurisdiction over the parties in the international
sense on some other basis. Lack of personal service does not neces-
sarily invalide a foreign judgment.
Today natural justice seems to refer to alleged irregularities in
the procedure of the foreign court of a very serious nature. A foreign
judgment can be impeached as contrary to natural justice if the
defendant had no notice of the foreign action or had never been
summoned before the foreign court. Of course the expression
“natural justice” refers to the form of the procedure not the merits
of the particular case. If the foreign proceedings are in accordance
with the practice of the foreign court but that practice is not in
accordance with “natural justice” as conceived by the enforcing
court, the foreign judgment will not be enforced. Actually it is with
great reserve that English and Canadian courts affix this censure
to foreign procedure.
Where the foreign procedure was irregular but not contrary to
the enforcing court’s notions of natural justice, the defendant can
always apply to the original court to have the judgment set aside.
If, on the other hand, the procedure was in accordance with the
practice of the original court but contrary to the enforcing court’s
notions of natural justice, the enforcing court will intervene.
Lack of natural justice is never presumed. 13 The onus is on the
defendant to prove that he was not served and did not receive any
notice of the foreign suit as prima facie it must be taken that the
proceedings of the foreign court were regular.’ 4
The fact that the foreign law on which the judgment is based
or the foreign procedure followed is peculiar, or exceptional or
simply different from that of the enforcing court, does not invali-
date the judgment. Mere irregularity of procedure, and nothing
312 Piggott, Foreign Judgments (2nd ed., 1908), p. 171. Schibsby v. Westenholz
and others (1870), L.R. 6 Q.B. 155, at p. 160.
313 Henderson v. Henderson (1844), 6 Q.B. 288.
314 Romano v. Maggiora (1936), 50 B.C.R. 362.
McGILL LAW JOURNAL
[Vol. 17
more, will not be regarded as contrary to natural justice.3 1r An
erroneous application of foreign law resulting in an obviously wrong
decision, though undoubtedly contrary to justice, is not contrary
to natural justice unless some legal principle, common to almost
all nations, has been infringed.316
Although the method for conducting the trial or the rules of
evidence applied may differ from those of the forum, it does not
follow that they are necessarily contrary to natural justice. Methods
of investigation in each country are adjusted to the conceptions of
expediency and convenience which prevail there. In Re Hughes v.
Sharp 317 ‘a judgment taken on a cognovit was enforced in British
Columbia where it appeared that the defendant had authorized his
agent in Ohio to execute a contract of guarantee in the transaction.
Differences between the procedure of Ohio and that of British Co-
lumbia did not make the judgment contrary to natural justice.
In the leading English case of Pemberton v. Hughes “‘, it was
said that: “If a judgment is pronounced by a foreign Court over
persons within its jurisdiction and in a matter with which it is
competent to deal, English Courts never investigate the propriety
of the proceedings in the foreign Court, unless they offend against
English views of substantial justice”.319 This statement is prima facie
in accordance with the rule that matters relating to procedure must
be controlled by the law of the court which rendered the judgment.
It is only for a very good reason that the foreign judgment will be
denied effect on the ground that it was obtained in a manner
contrary to natural justice.
Essentially the defence of lack of natural justice pertains to a
situation in which the defendant in the original proceedings did
not receive any notice at all or received inadequate notice of the
trial, so that the decision was reached without his being heard or
having had an opportunity to present his case. In other words, we
315 Pemberton v. Hughes, [1899] 1 Ch. 781 (C.A.). Irregularities of procedure
in the foreign court are not a bar if the court had jurisdiction: Re Traders
Group Ltd. v. Hopkins et al. (1969), 1 D.L.R. (3d) 416 affirming (1968), 64
W.W.R. 698, 69 D.L.R. (2d) 250.
3 16 Robinson v. Fenner, [1913] 3 K.B. 835, at p. 843. See also Simpson V.
Fogo (1863), 32 L.J. Ch. 249; Liverpool Marine Credit Co. v. Hunter (1868),
L.R. 3 Ch. App. 479; Lesperance v. Leistikow, [1935] 3 W.W.R. 1, at p. 7 (Man.).
317 (1968), 70 D.L.R. (2d) 298 (B.C.).
318 [1899] 1 Ch. 781 (C.A.), per Lindley, M.R., at p. 790.
319 See also Salvesen v. Administrator of Austrian Property, [1927] A.C. 641,
at p. 659.
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RECOGNITION AND ENFORCEMENT
are concerned here with a situation where the judgment debtor
did not have his day in the foreign court 20
The judgment debtor may not have had an opportunity to be
heard in the foreign action either because he had no sufficient
notice or no notice at all of the proceedings abroad or because he
may have been unfairly prevented from presenting his case before
the foreign court. Thus, to be enforced in Canada a foreign judg-
ment must have been rendered upon regular proceedings after due
citation or voluntary appearance, and under a system of juris-
prudence likely to secure an impartial administration of justice.
This is an application of the rule audi alteram partem. Where the
defendant in the original suit was not properly notified, the judg-
ment obtained will not be enforced.
The defence of natural justice involves the question of notice
which is often closely related to that of jurisdiction. However,
jurisdiction must be distinguished from natural justice, for if the
defendant were not subject to the jurisdiction of the foreign court
when the action was commenced, the judgment is invalid regard-
less of lack of notice 321
Where the foreign court had jurisdiction according to the law
of the forum, the defendant, in an action on the foreign judgment,
may still rely on a lack of notice of the foreign suit. The material
question here is whether the defendant had notice or knowledge
of the proceedings and an opportunity to be heard. 22 If he had
no knowledge of the original proceedings and had no opportunity
320Delaporte v. Delaporte (1927), 61 O.L.R. 302, [1927] 4 D.L.R. 933 (“no one
should be condemned unheard”); McLean v. Shields (1885), 9 O.R. 699 (CA.);
Rothwell v. Rothwell, [1942] 3 W.W.R. 442, 50 Man. R. 249; Bugbee v. Clergue
(1900), 27 O.A.R. 96, 20 C.L.T. 57 aff’d 31 S.C.R. 66, 21(B) C.L.T. 136; see also
Turcotte v. Dawson (1879), 30 U.C.C.P. 23 (C.A.) at p. 28.
321British Linen Co. v. McEwan (1892), 8 Man. R. 99 (C.A.); Schneider v.
Woodworth (1884), 1 Man. R. 41; McLean v. Shields (1885), 9 O.R. 699 (CA.);
see also Delaporte v. Delaporte, [1927] 4 D.L.R. 933; Bavin v. Bavin, [1939]
O.R. 385, [1939] 2 D.L.R. 278, varied [1939] O.R. 390, [1939] 3 D.L.R. 328, applied
in Rothwell v. Rothwell, [1942] 3 W.W.R. 442, [1942] 4 D.L.R. 767, 50 Man. R.
249; in Frederick A. Jones, Inc. v. Toronto General Insurance Co., [1933] O.R.
428, a Florida judgment was held to be a nullity on the ground that the original
court lacked jurisdiction over the judgment debtor and that he had received
no actual notice or knowledge of the action; see also Beaty v. Cromwell (1883),
9 P.R. 547 and Deacon v. Chadwick (1901), 1 O.L.R. 346, at p. 351.
322Wanderers’ Hockey Club v. Johnson (1913), 5 W.W.R. 117, 18 B.C.R. 367,
25 W.L.R. 434, 14 D.L.R. 42 (no service and no knowledge); Maday v. Maday
(1911), 4 Sask. L.R. 18 (no notice); cf. Fields v. Fields, [1925] 2 D.L.R. 256 (N.S.)
(some sort of notice).
McGILL LAW JOURNAL
[Vol. 17
to defend himself, the foreign judgment will not be enforced. When
the defendant had some form of notice if would be difficult to
attack the judgment. As a resident in the foreign country he is
subject to the procedural laws of that country.3m However, although
notice was given in accordance with the law of the original court
it should not prevent the forum from questioning its sufficiency
because natural justice is essentially a question to be decided by
the enforcing court applying its own standards. It is not a question
of procedure to be determined by the law of the foreign court.2 24
This does not mean that the foreign rules of procedure must be
the same as those of the enforcing court.
The judgment debtor will state that at the time of the com-
mencement of the suit, and until judgment was rendered, he was
absent from the country, was not summoned to appear in, nor had
any notice or knowledge of the proceedings. This illustrates well
the two problems involved in the notion of “absence from the
country”, namely want of jurisdiction based on such absence, and
want of notice, also on account of absence. The defendant must
deny notice or knowledge of the proceedings . 3 2 Natural justice
does not involve jurisdiction as such, but the methods by which
jurisdiction is exercised. As Piggott pointed out 326 if on the prin-
323 Thus in Romano v. Maggiora, [1937] 1 W.W.R. 490, 51 B.C.R. 352, the
defendant was resident of the foreign state where the judgment was rendered;
the court said that handing the defendant the suit papers enclosed in an
envelope was a service that was not against natural justice.
324See Frederick A. Jones, Inc. v. Toronto General Insurance Co. [1933J
O.R. 428 (CA.), but see Stolp and Co. v. Browne and Co., [1930J 4 D.L.R. 703
(Ont.). The action was on a Dutch judgment based on an award rendered
in accord with the rules of procedure of an arbitration tribunal. These rules
did not make it necessary to give a notice of the award before proceeding
to judgment. In an Ontario action to enforce the judgment the defendant
argued that the lack of notice invalidated it. The court rejected this argument
and held that the requirement of notice or no notice is a matter of procedure
governed by the lex fori. Since the defendant had agreed in advance that
any disputes with the plaintiff arising out of the subject matter of the action
were to be settled by arbitration according to the rules of the tribunal, he
was bound by the judgment: “And so a judgment obtained in a Court of
Holland according to the practice of that Court is valid in Holland as far
as practice is concerned, irrespective of the practice which obtains in Ca-
nada…” The lack of notice did not affect the validity of the judgment in
Holland. Consequently it would be enforced in Ontario. This approach is
erroneous as sufficiency of notice in relation to natural justice is a question
governed by the law of the enforcing court and not by the foreign procedural
law.
325 Montreal Mining Co. v. Cuthbertson (1852), 9 U.C.Q.B.
326 Piggott, ForeignJudgments (Part I, 3d ed., 1908), p. 406.
(C.A.).
No. 1]
RECOGNITION AND ENFORCEMENT
ciples already established the foreign court had no jurisdiction over
the defendant, the courts of the forum will disregard the judgment,
regardless of how much notice the defendant had, as long as there
was no voluntary appearance. The converse is not true; if the court
had jurisdiction over the defendant, the courts of the forum still
will be able to inquire into the sufficiency of the method by which
the jurisdiction was exercised.&3 7 Thus, if a defendant is not resi-
dent in or subject of a foreign country nor present within its
territorial limits and has no notice of any action brought against
him in its tribunals, it is plain that the absence of notice is merged
so to speak in the absence of jurisdiction which would be amply
sufficient to invalidate the judgment even if notice was in fact
given; but if the defendant is subject to the foreign jurisdiction
either by domicile, or submission or nationality, he is of course
subject to its laws and though he has no actual notice of an action
commenced against him in its tribunals and may not have been
served with any writ or process, he may have had constructive
notice which will satisfy those laws and be accepted by Anglo-
Canadian courts as sufficient.
On the other hand, it is well-established that a want of personal
service or notice is not a ground for refusal to enforce a judg-
ment in personam recovered in an action in which the foreign
court was a court of competent jurisdiction, and the defendant
had notice of the proceedings and an opportunity to be heard.
Thus in Shearer & Co. v. McLean,328 Barker J. said “I have con-
sulted very many of the numerous cases to be found in the books
on this subject, and neither in them, nor in any book of precedents,
have I been able to find any plea putting forward as a ground
why a foreign judgment in a personal action should not be enforced
by the courts of another jurisdiction, the want of a personal serv-
ice unless it was accompanied with an averment that the party
had no notice of the proceedings or had no opportunity of de-
fending himself… British Courts will not enforce the judgment
of foreign tribunals in personal actions where the original process
has not been personally served within the territorial jurisdiction of
the foreign Court, nor where there has been an artificial or sub-
stituted service, as provided for by the procedure of the foreign
Court, unless such, service has been made while the defendant was
327 In England in divorce cases mere want of notice does not appear to be
a ground on which a foreign divorce can be attacked if the foreign court had
jurisdiction, see e.g. Boettcher v. Boettcher, [1949] W.N. 83.
328 (1903), 36 N.B.R. 284 (CA.), at p. 291.
McGILL LAW JOURNAL
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permanently or temporarily resident within the territorial juris-
diction of the foreign tribunal, and unless such process came to
his notice, so that he had an opportunity of defending himself.
If, however, in either of these cases the defendant voluntarily
appeared in the action and defended himself to the jurisdiction
of the foreign Court the judgment would be enforceable”?.2
Lack of or insufficient notice is no defense to an action on a
foreign judgment when the defendant subjected himself to the
jurisdiction of the foreign court and expressly or impliedly agreed
to waive notice and was, in accordance with such agreement, not
served with notice of the proceedings. 30
…it is not contrary to natural justice that a man who has agreed to
receive a particular mode of notification of legal proceedings should be
bound by a judgment in which that particular mode of notification has
been followed, even though he may not have had actual notice of them.3 3′
By expressly or tacitly agreeing to be governed by a law which
does not require actual notice to be given, the defendant will be
held to have waived notice provided he was subject to the juris-
diction of the foreign court.3 32 It is also sufficient if the defendant
had some knowledge of the proceedings, but a copy nailed on the
door of the tribunal is insufficient notice 33 A verbal notice or
proclamation may fulfill the requirement; 334 or a summons served
by registered post.3 35
The courts look with suspicion upon judgments given in un-
defended suits. They will make sure that the failure to make a
defense was not due to any unfairness in the procedure of the
court, but was a voluntary default by the defendant. Where the
defendant had an absolute right to appear and defend at any time
before execution, or after, he will not be considered to have been
denied natural justice even if the action were commenced without
the defendant’s knowledge, and notice of the proceedings were sent
to him too late for effective action. 36
329 See also Romano v. Maggiora (1936), 50 B.C.R. 362; British Linen Co. V.
McEwan (1892), 8 Man. R. 99 (C.A.). The fact that one of two co-defendants
was not served in the foreign action is no defence to the other who was
properly served: Bacon v. McBean (1847), 3 U.C.Q.B. 305.
330 Ritter v. Fairfield (1900), 32 O.R. 350 (CA.); Vallde v. Dumergue (1849),
4 Ex. 290; Copin v. Adamson (1875), L.R. 1 Ex. D. 17.
33 At p. 303 of Vallge v. Dumergue, ibid.
332See Jamieson v. Robb (1881), 7 Vict. L.R. 170; Stolp and Co. v. Browne
and Co., [1930] 4 D.L.R. 703 (Ont.) could be explained on that basis.
333 Buchanan v. Rucker (1808), 9 East 192.
334Reynolds and others v. Fenton (1846), 16 LJ. C.P. 15.
335Feyerick v. Hubbard (1902), 86 L.T. 829.
336 Jeannot v. Fuerst (1909), 25 T.L.R. 424.
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RECOGNITION AND ENFORCEMENT
A judgment may be invalid if, despite notice, the defendant was
not given adequate opportunity and sufficient time to present his
case to the court or has not been provided with full knowledge of
the charge against him. The foreign court must not depart from
the ordinary course of judicial procedure and the defendant must
not be prevented from adequately presenting his case to the foreign
court by some peculiarity of the foreign judicial machinery. In other
words if the judgment debtor can prove that he was prevented by
improper means from presenting his defence, there was a violation
of natural justice.33
There can also be a lack of natural justice where the defendant,
being an enemy alien, was prevented from appearing and defending
the suit because of absence of transportation or communications
in time of war. To sum up, any situation where the defendant
was unfairly deprived of an opportunity to defend himself is open
to attack on the ground of a denial of natural justice.
Where a defendant who is aware that an action to recover a
debt has been commenced against him chooses to ignore his own
solicitor’s advice, fails to give any instructions and leaves the
jurisdiction in which the action is pending without notifying his
solicitor of his whereabouts, it cannot be said that a default judg-
ment obtained by the plaintiff in a court of competent jurisdiction
was contrary to natural justice338
There is every reason why the courts should not enforce judg-
ments rendered under a form of procedure which according to
prevailing Canadian notions of what is right and fair would result
in substantial injustice. However it would be unfortunate if a court
were to reach such a decision merely because the foreign proce-
dure seems unusual in its eyes. Of course it is extremely difficult
to ascertain the degree of fairness of foreign rules, especially where
local standards are applied. A strict application of these standards
to judgments rendered in non-common-law jurisdictions would
render their enforcement difficult if not often impossible.
Perhaps the principles expounded in Travers v. Holley33 9 with
regard to jurisdiction could help solve this aspect of the enforce-
337In Scarpetta v. Lowenfeld (1911), 27 T.L.R. 509 and Jacobson v. Frachon
(1928), 138 L.T. 386, the plea that the defendant, although he was properly
notified of the proceeding and attended the court, was prejudiced in presenting
his case did not succeed.
33 8 Re Reciprocal Enforcement of Judgments Act; Wigston v. Chowen (1964),
49 W.W.R. 543 (Sask).
339 [1953] P. 246; see also Kennedy, “Reciprocity” in the Recognition of
Foreign Judgments (1954), 32 Can. Bar Rev. 359, at p. 383.
McGILL LAW JOURNAL
[Vol. 17
ment of foreign judgments. Where the foreign court had jurisdic-
tion over the defendant, the judgment should not be invalid on
the ground of lack of natural justice, for the sole reason that the
defendant did not receive actual notice, as long as he received
from the foreign court such notice by constructive or substituted
service as the enforcing court would have allowed under its rules
to be given to a foreign defendant in a similar action.
The foreign procedure could not therefore be condemned by the
enforcing court as contrary to its own notions of natural justice.
“As there is a discretion in our own court to dispense with service,
we should be slow to brand a foreign decree as contrary to natural
justice.., merely because notice did not in fact reach the appli-
cant. ‘ 340 This approach to the problem would result in procedural
reciprocity.
Similarly, dispensation with service by a foreign court, if on
principles similar to those which the forum applies to local litiga-
tion, would not amount to a lack of natural or substantial justice.
Of course the court must have been internationally competent ac-
cording to the conflict rules of the enforcing court. How could
Canadian courts refuse to recognize a method of service which
they themselves use. Since the courts of the forum apply their
own standards in ascertaining the value of the foreign rules of
procedure, it follows that they are bound to recognize foreign rules
similar to their own.
In its last analysis the plea of natural justice is only a convenient
device used to limit the application of foreign rules of law, or the
enforcement of foreign claims. Actually it is part of public policy.
Canadian courts, should certainly not refuse to enforce a foreign
judgment merely because the foreign court which rendered it fol-
lowed a procedure which differs widely from their own. The only
important criterion in these matters is one of reasonableness. If
the judgment debtor had a reasonable opportunity to appear and
to defend himself, he should be bound.
From a practical point of view, one way to liberalize the present
rules would be through the adoption of procedural reciprocity. The
forum would recognize the foreign rules of procedure where they
are substantially similar to those of the forum. This, however, should
not be interpreted in a restrictive sense so as to prevent the recog-
nition of foreign judgments based on rules of procedures which
are unusual in the eyes of the forum. Public policy does not require
34O1gra v. Igra, [1951] P. 404, per Pearce, J. at p. 411; see also Bugbee v.
Clergue (1900), 27 OA.R. 96, at p. 109 (CA.).
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RECOGNITION AND ENFORCEMENT
such a drastic solution. Procedural reciprocity should be used only
to extend present common-law rules, in other words, to narrow
the gulf between local statutory rules and foreign rules of proce-
dure, especially with respect to service of process.
6) Public policy
It is often stated that a foreign judgment will not be recognized
or enforced if it is contrary to the public policy of the forum.
The difficulty lies in ascertaining the contents of public policy.
In this respect the function of the judge is essentially a creative
one. He does not confine himself to applying in detail the heads
of policy long since settled and defined by his predecessors. Public
policy varies with time. Thus, in the case of a foreign judgment, only
the public policy at the time enforcement is sought will be con-
sidered. In the course of time, the foundation of a particular rule
may be altered in such a way that it loses its initial content. While
the rules of public policy have in some instances crystallized into
fixed rules of law, there still remains a broad field within which
the courts can apply variable notions of policy as a principle of
judicial legislation or interpretation founded on the needs of
the community. Although in common-law provinces the judge must,
to a certain extent, adhere to precedents as to the nature of public
policy, he may still adapt the essential elements of public policy
to particular cases.
The law does not itself define the contents of public policy and
morality, it merely provides a standard, the precise extent and
application of which must necessarily be determined by judicial
discretion.
In the field of conflict of laws, public policy favours the
application of domestic law with reference to interprovincial as
well as international transactions, while conflict of laws rules
demand the application of the proper foreign law where it is
relevant. Public policy tends to exclude the application of foreign
law or the recognition of foreign claims and judgments. Although
the notion of public policy in this field of the law is not necessarily
similar to the ordinary public policy applied to domestic trans-
actions, very little distinction exists between the two. Public policy
is no more than a provincial policy operating in an international
or interprovincial sphere. Both internal and external public policy
stem from the provincial policy of the lex fori itself though they
may differ in material respects. The question is to distinguish
between the policy or morality which will strike at a domestic
McGILL LAW JOURNAL
[Vol. 17
transaction and that which will serve to exclude a foreign judgment
otherwise perfectly valid.
Although external and internal rules of public policy may be
similar, they are by no means identical with those of public law,
because they cover a much wider field and because each state
not only has its own public policy, but also may attach more
importance to certain rules than does another state. The same
matter may be considered as pertaining to public policy in one
province or country and not in another, or come under public
policy in both provinces or countries though subjected to different
treatment or classification.
Public policy is a necessary safety valve for every country or
province in order to enable its courts to deny effect to those foreign
laws and judgments which for one reason or another offend the
domestic views of justice. Public interest dictates that the courts
should not assist in the enforcement of a judgment based on
something illegal or immoral according to the views of the forum.
Public policy has not yet been used in Canada to refuse the
enforcement of foreign judgments. This is understandable on the
interprovincial level.3 41 On the international level the courts have,
by a wise interpretation of conflict rules, been able to avoid resorting
to this unruly horse and achieve similar results.
It seems clear that a valid foreign judgment for the payment
of money should not be enforced if an action on the original claim
could not have been maintained in the forum because of illegality
under its law.342
In other words, it would be intolerable to lend judicial aid to
enforce decisions which conflict with the law of the forum, not
because the cause of action on which the foreign judgment is
based is unknown in the forum, but because it is illegal under
such law. The local policy, therefore, would be sufficient to overcome
the rule that the foreign judgment is conclusive. Although the
obligation arising from the foreign judgment must not be confused
with the original cause of action, the illegality of the original cause
of action avoids the new obligation. This means that the original
claim, the merits of which are determined by the foreign judg-
ment, must not be incompatible with the social or moral institutions
of the recognizing or enforcing court.
Canadian courts will not refuse to enforce a foreign judgment,
valid according to the law of the foreign state, merely because
341 See Castel, op. cit., p. 182.
342 See Read, op. cit., p. 292 et seq.
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RECOGNITION AND ENFORCEMENT
the lex fori does not recognize or does not know the cause of action
on which the judgment is founded.3 43 The doctrine of legal obligation
would be reduced to an empty shell if the judiciary of any country
were to deny effectiveness to every foreign judgment founded on
principles unknown to the forum’s jurisprudence. It would contra-
vene the idea that valid foreign judgments must be recognized even
if they could not have been rendered in the forum 44 It could
even be argued that it is a breach of international law not to give
effect to a foreign judgment. The very essence of harmonious
international relations and cooperation is the total abstention, by
every member of the community of civilized states, from criticizing
the wisdom of the judicial officers as well as the laws of another
member of the community, unless gross injustice would result to
the defendant.
III. Procedural Questions: Methods of Enforcement at Common
Law
Introduction
Foreign judgments cannot be directly enforced in Canada. There
must always be an authoritative act of the province in the territory
of which the enforcement is to take place. For this reason the usual
practice is to bring an action on the foreign judgment. In each
province a foreign judgment does not enjoy the right of priority,
of privilege, or lien, which it may enjoy in the country where it
was rendered, but only that which the lex fori will give to it in its
character as a foreign judgment. In common law Canada, to give
any executory effect to a judgment of another jurisdiction, a new
judgment must be recovered thereon locally.
Direct enforcement of foreign judgments would be contrary to
the principle that an order of a foreign sovereign cannot command
obedience outside his own territory. Canadian courts are willing
to lend their assistance to a foreign judgment creditor but before
doing so they want to be able to examine the defences which may
be raised by the other party to the action. By requiring that an
action be brought on the foreign judgment, the courts are able
343Burchell v. Burchell (1926), 58 O.L.R. 515, [1926] 2 D.L.R. 595; Meyers v.
Meyers, [1935] 44 O.W.N. 547; Burpee v. Burpee, [1929] 2 W.W.R. 128, 41 B.C.R.
201, [1929] 3 D.L.R. 18.
344The question whether an Ontario court would enforce a foreign judgment
based on a statute that has no extraterritorial effect was left open in Assini-
boia Land Co. v. Acres (1916), 10 O.W.N. 328, 28 D.L.R. 364.
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[Vol. 17
to test the plaintiff’s claim without seeming to derogate from the
high authority of the foreign court which rendered the judgment.
Enforcement of the foreign judgment connotes the granting of
compulsory execution, it presupposes recognition, which means
essentially the extension of the res judicata effect of the judgment
to the territory of the country applied to. This is why there has
always been a certain reluctance to extend that effect without
some kind of judicial control, or to have execution left to the
discretion of the executive power.
Methods of enforcement
The methods of enforcement of foreign judgments are determined
by the lex fori. Canadian courts are not bound to give a judgment
creditor the remedies which the foreign court would give him.
In the common law provinces a creditor who has obtained a
foreign money judgment in his favor may disregard it and bring
an action on the original cause,3 45 or he may bring an action on
the foreign judgment,346 or he may try to register it if special local
legislation allows this type of procedure 47 It is also possible for
a judgment creditor to sue on the original cause of action and
the foreign judgment alternatively in the same action.3 48 If the
judgment creditor fails in his action on the judgment he may
amend his statement of claim by adding a claim on the original
cause of action.3 49
345 Trevelyan v. Myers (1895), 26 O.R. 430; State Bank of Butler v. Benzanson
(1914), 27 W.L.R. 812, 16 D.L.R. 848; Monast v. Prov. Ins. Co. Ltd. of England,
[1939] 48 O.W.N. 113; Lung v. Lee (1928), 63 O.L.R. 194, [1929] 1 D.L.R. 130
(CA.).
346 Bugbee v. Clergue (1900), 27 OA.R. 96, at p. 106.
347 See section IV infra.
3 4 8 Clergue v. Humphrey (1900), 31 S.C.R. 66, at p. 69; Moritz v. Can. Wood
Specialty Co. (1908), 17 O.L.R. 53, at p. 68 aff’d 42 S.C.R. 237; Hutton v. Dent
(1922), 52 O.L.R. 378, at p. 382 aff’d 53 O.L.R. 105; [19231 S.C.R. 716; Trevelyan
et al. v.’Myers (1895), 26 O.R. 430; Industrial Acceptance Corp. Ltd. v. Stevenson
(1963), 43 W.W.R. 126 (Sask.).
349 Lung v. Lee (1928), 63 O.L.R. 194 (C.A.), [1929] 1 D.L.R. 130; Vdzina v. Will
H. Newsome Co. (1907), 14 O.L.R. 658 (CA.), at p. 665; Webster MacLauchlan
Co. Ltd. v. Connors Brothers, Ltd. (1935), 9 M.P.R. 345 (N.B.), [1935] 2 D.L.R.
483; Lindsay v. Papassimakes (1923), 23 O.W.N. 662; Huntingdon v. Marion
(1925), 28 O.W.N. 221, at p. 223, affd 29 O.W.N. 187 (C.A.); Davidson v. Sharpe,
[1920] 1 W.W.R. 888, 60 S.C.R. 72, 52 D.L.R. 186; Re McMillan v. Fortier (1901),
2 O.L.R. 231; Hutton v. Dent (1922), 52 O.L.R. 378, aff’d 53 O.L.R. 105, 70 D.L.R.
582, aff’d [1923] S.C.R. 716; Bond v. Ives (1865) 6 N.S.R. 167 (C.A.); Trevelyan
et al. v. Myers (1895), 26 O.R. 430.
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RECOGNITION AND ENFORCEMENT
Assignability
Parties
A foreign judgment is assignable so that the assignee may sue
upon it in his own name.350
Lack of identity of defendant
If the defendant to the action brought in Canada upon a foreign
judgment in personam was not a party to the foreign suit, the
action will be dismissed for lack of identity of the party defendant 5’
However if evidence is given of the existence of a judgment against
someone whose name is identical with that of the defendant, this
identity coupled with the fact that the defendant has pleaded in
confession and avoidance, is prima facie evidence that the judgment
produced is against the defendant 52
Immunities
A foreign judgment will not be enforced against a person who
is entitled to sovereign or diplomatic immunity. Immunity from
jurisdiction and execution must be waived.
Severability of judgment
If a foreign judgment comprises two or more parts, one of
which is enforceable according to the law of the enforcing court,
but the other one is not, the judgment is deemed severable and
the one part will be acted upon and enforced 353
35o Fowler v. Vail (1877), 27 U.C.C.P. 417, at p. 426, varied 4 O.A.R. 267; Grobe
v. Buffalo & Fort Erie Ferry & Ry. Co. (1916), 38 O.L.R. 272; Howland v. Codd
(1894), 9 Man. R. 435; Cf. Stewart v. Guibord et al. (1903), 6 O.L.R. 262. The
right of action passes to the trustee in bankruptcy: Moritz v. Can. Wood
Specialty Co. (1907), 17 O.L.R. 53, at p. 63, aff’d 42 S.C.R. 237.
351 See Bonn v. National Trust Co. Ltd., [1930] 4 D.L.R. 820 (Ont. S.C.).
352 Stevens v. Olson (1904), 6 Terr. L.R. 106 (C.A.) varying Stephens v. Olson
(1905), 1 W.L.R. 572 (N.W.T.); Hesketh v. Ward (1866), 17 U.C.C.P. 190. See
also Dennison v. Taylor (1856), 8 N.B.R. 313 (C.A.) (lack of evidence to identify
the defendant with the defendant in the foreign action. As to whether a person
may be sued in a name other than his own see Mills and Sparrow v. McGrath
(1907), 1 Alta L.R. 32.
353 Burchell v. Burchell (1926), 58 O.L.R. 515, at p. 521, [1926] 2 D.L.R. 595;
Ashley v. Gladden, [1954] 4 D.L.R. 848 (Ont. C.A.).
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Jurisdiction of the court
The law of the forum determines which court, if any, can
entertain an action on a foreign judgment. The court enforcing
the foreign judgment must have jurisdiction over the subject
matter and the parties.
Service out of Ontario of a writ of summons or notice of writ
may be allowed in appropriate cases 54
In Nova Scotia, according to Order XI, rule 1(h) service ex juris
is possible where the “action is on any judgment, foreign or
otherwise, obtained against a person who has real or personal
property situate within the jurisdiction”.35
In British Columbia service of a writ of summons or notice
thereof on a defendant out of the province may be allowed in an
action on a foreign judgment if it is proved to the satisfaction of
the judge that the defendant has assets in British Columbia. 50
Form of action
As noted earlier, a foreign judgment imposes an obligation upon
the defendant to pay the sum for which it is given.357 Thus a
foreign judgment for a sum certain constitutes a simple contract
debt for that amount from the judgment debtor to the judgment
creditor, upon which an action of debt used to lie. 58 The foreign
judgment creates a new starting point and from it there is inferred
the promise to pay the amount of the debt as adjuged35 9 The
liability of the defendant arises upon the implied contract to pay
the amount of the foreign judgment.
In Barned’s Banking Co. Ltd. v. Reynolds3 10 Wilson J. said
“Assumpsit, or debt, is the form of action brought upon foreign
354 Ontario rule 25 (k); Capital National Bank v. Merrifield, [1968) 1 O.R. 3
and Lawson v. Lawson, [1964] 2 O.R. 321. Cf. Ontario rule 25 (m) amended in
1941 to resolve the difference of opinion which arose as to whether the rule
covered foreign judgments: Bedell v. Gefaell, [1938] 47 O.W.N. 88, [1938] O.R.
718 (C.A.); Bedell v. Gefaell (No. 2), [1938] O.R. 726 (C.A.).
355 See also N.B. Rules, 0. 11, rule 1 (h).
356 Order 58, rule 1; also Sask., rule 29(a); Man., rule 30.
357Fowler v. Vail (1877), 27 U.C.C.P. 417, varied 4 O.A.R. 267, at p. 270.
358Martel v. Dubord (1885), 3 Man. R. 598; Kelly v. McDermott (1861), 10
P.R. 490; Re McMillan v. Fortier (1901), 2 O.L.R. 231. Assumpsit had also been
used; see Bond v. Ives (1865), 6 N.S.R. 167.
359 Bedell v. Gefaell, [1938] O.R. 718.
360 (1875), 36 U.C.Q.B. 256, at pp. 288-9; see also Re Kerr v. Smith (1894),
24 O.R. 473; Fowler v. Vail (1877), 27 U.C.C.P. 417, -varied 4 OA.R. 267.
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RECOGNITION AND ENFORCEMENT
judgments. They are simple contract debts in this country, whatever
force as debts by specialty or record they may have in the country
of their recovery; and non-assumpsit or never indebted, may be
pleaded to the action upon such judgment”.
Although the forms of actions have been abolished in Canada,
the fact that a foreign judgment is a simple contract debt still has
important procedural consequences.
Specially endorsed writ and summary judgment
A foreign money judgment may be sued upon by specially en-
dorsed writ of summons with a statement of claim and the plaintiff
may obtain an order empowering him to sign a final judgment.
This results from the fact that a foreign judgment gives rise to a
debt or liquidated demand in moneyY61
The object of the specially endorsed writ is to provide a very
in favour of the plaintiff, by
prompt and summary procedure
entitling him to sign judgment and to give the defendant the
opportunity of avoiding further proceedings by payment of the
debt. Thus vexatious defenses are discouraged. The plaintiff may
obtain a summary judgment without trial if he can prove his claim
clearly and if the defendant is unable to set up a bona fide defence
or raise an issue against the claim which ought to be tried. For
instance, in Ontario, rule 33(1) states:
At the opinion of the plaintiff, the writ of summons may be specially
endorsed with a statement of claim where the plaintiff seeks to recover
a debt or liquidated demand in money (with or without interest and
whether the interest be payable by way of damages or otherwise) arising
… (g) upon a judgment.362
361 Whitla v. McCuaig (1891), 7 Man. R. 454; Grant v. Easton (1883), 13 Q.B.D.
302 at p. 303 (C.A.): “The liability of the defendant arises upon the implied
contract to pay the amount of the foreign judgment.”
362 Capital National Bank v. Merrifield, [1968] 1 O.R. 3. See Davis v. Williams,
[19383 47 O.W.N. 504. In Robertson v. Robertson (1908), 16 O.L.R. 170 the rule
was extended to an action on a foreign judgment for arrears of alimony
although at that time it did not include the words “upon a judgment” but
“debt arising upon a contract, express or implied”. (Old rule 33(1)(a)). Also
Solmes v. Stafford (1893), 16 P.R. 78, aff’d 264; Eastern Trust Co. V. MacKenzie,
Mann & Co. (1916), 10 O.W.N. 445; see also British Columbia Rules, 1961,
Order 3, rule 6(a) “Upon a contract, express or implied…” and Order 14,
rule 1(a). Hughes v. Sharp (1969), 68 W.W.R. 706 (B.C.); Superior Spruce Mills
Ltd. v. Bodie, [1950] 2 W.W.R. 384 (B.C.); Prince Edward Island Rules, 1954,
Order 3, rule 1(a); New Brunswick Rules, 1956, Order 3, rule 6(a); Nova Scotia
Rules, 1950, Order 3, rule 5(A); cf. Saskatchewan Rules, 1961, rule 129; Alberta
Rules, 1969, rule 159; Manitoba Rules, 1968, rule 34.
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[Vol. 17
If the special endorsement contains sufficient particulars of the
judgment sued upon, the plaintiff need not specify whether leave
was obtained to permit service ex juris or any particular of service
or defence, as this would be anticipating a defence.313 Of course,
where the defendant denies service, it must be proved.3 04
When the action is not on the judgment alone but on some
obligation not set out in the writ, it cannot be specially endorsedY
The date of taxation must be stated when a claim is made on a
specially endorsed writ for the taxed costs of a foreign judgment 00
The statement of claim endorsed on the writ must state against
whom the foreign judgment was recovered3 7
Interest claimed on a foreign judgment which is not payable
by contract or by statute and was not awarded by the judgment
as a continuing obligation beyond the date of its entry cannot be
the subject of a special endorsement as it is considered unliquidated
damages 6s
A motion for speedy judgment will be refused where the de-
fendant, by his affidavit alleges that the foreign judgment was
recovered by fraud on the foreign court.30
Where a plaintiff sues on a foreign judgment and joins a claim
to set aside an alleged fraudulent conveyance, he is not entitled
to summary judgment. 10 On a motion for judgment on a specially
endorsed writ, an order may be made giving the defendant leave
to defend either unconditionally or subject to such terms as
seem just, or for a speedy trial of the action.371
Thus, in Gonzalez v. Pardo37 2 the court refused to require payment
into court of the amount of the foreign judgment as a condition
to defending the action to enforce it in Ontario in view of the fact
that the plaintiff had seized assets of the defendant in the original
63 Beloff Roofing Co. v. Jelinek, [1953] O.W.N. 390; as to what the affidavit
must contain see Mills and Sparrow v. McGrath (1907), 1 Alta L.R. 32.
364 Etler v. Kertesz, [1960] O.R. 672 (CA.).
365 Thompson v. Donlands Properties Ltd. et al. (1932), 41 O.W.N. 337, also
366 Macaulay Bros. v. Victoria Yukon Trading Co. (1902), 9 B.C.R. reversing
[1934] O.R. 541.
9 B.C.R. 27 (CA.).
367 Ibid.
368Solmes v. Stafford (1893), 16 P.R. 78 aff’d (1894), 16 P.R. 264 (C.A.);
see also Hollender v. Ffoulkes (1894), 16 P.R. 175 (C.A.).
269 Jacobs v. Beaver (1908), 17 O.L.R. 496, see Ontario Rules of Practice,
rule 57.
370 Campbell v. Morgan, [1918] 2 W.W.R. 810, 28 Man. R. 531.
371 Ontario rule 60.
372 [1947] O.W.N. 130.
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RECOGNITION AND ENFORCEMENT
3 The defendant must file an affidavit showing that he
court
has a good defence and the nature of it, or that there is a triable
issue.3 7 4
The main characteristic of summary procedure is its simplicity.
However, it is limited in its application since any bona fide defense
will bar the recovery of a summary judgment. From a practical
point of view this method is widely used by foreign judgment
creditors enforcing their claims in Canada. The weakness of the
summary judgment procedure is that it is applicable to a great
variety of actions. Thus it cannot take into consideration the exact
nature of the cause of action. Only a procedure which is specifically
intended to apply to foreign judgments can be fully effective, and
be responsive to the fact that the issues of the case have already
been adjudicated abroad.
Proof of foreign judgments
Each province prescribes by statute how a foreign judgment
may be proved.
In some provinces the Evidence Act 373 only applies to judg-
ments rendered in Canada and in a specified number of countries.
For instance in Ontario section 38 provides that: 376
A judgment, decree or other judicial proceeding recovered, made, had
or taken in the Supreme Court of Judicature or in any court of record
in England or Ireland or in any of the superior courts of law, equity
or bankruptcy in Scotland, or in any court of record in Canada, or in
any of the provinces or territories in Canada, or in any British colony or
possession, or in any court of record of the United States of America,
or of any state of the United States of America, may be proved by an
exemplification of the same under the seal of the court without any
proof of the authenticity of such seal or other proof whatever, in the
same manner as a judgment, decree or other judicial proceeding of
(B.C.C.A.).
373As to whether leave to defend should be given see Richer v. Borden
Farm Products Co. Ltd. (1921), 49 O.L.R. 172; Hughes v. Sharp (1969), 68 W.W.R.
706
374 Thomas v. Zeramba, [1917] 1 W.W.R. 159 (Sask.); Johnston v. Occidental
Syndicate (1910), 1 O.W.N. 367: summary judgment refused if facts sufficient
to defend action; cf. Gaetz v. Hall (1909), 10 W.L.R. 630, 2 Sask. L.R. 184; Mills
v. Magrath (1907), 1 Alta L.R. 32, at p. 46.
371 R.S.O., 1960, c. 125, s. 38.
376See Bedell v. Gefaell, [1938] O.R. 718; Tilton v. McKay (1874), 24 U.C.C.P.
94, at p. 99. It is not an objection that the exemplification is not in accordance
with the forms used in Ontario as long as it is under the seal of the foreign
court. As to what constitutes a proper exemplification: see Hesketh v. Ward
(1866), 17 U.C.C.P. 190 (C.A.), Junkin v. Davis et at. (1857) 6 U.C.C.P. 408, aff’d
22 U.C.Q.B. 369 (C.A.), Woodruff v. Walling (1855), 12 U.C.Q.B. 501 (C.A.).
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[Vol. 17
the Supreme Court in Ontario may be proved by an exemplification
thereof.
In other provinces the Evidence Act applies to all foreign judg-
ments wherever rendered. Thus in British Columbia according to
section 29 of the Evidence Act.3 77
Evidence of any proceeding or record whatsoever of, in, or before
any Court in the United Kingdom, or the Supreme or Exchequer Courts
of Canada, or any Court, or any Justice or any Coroner, in any Province
of Canada, or any Court in any British Colony or possession, or any Court
of Record of the United States, or of any State of the United States, or
of any other foreign country, may be given in any action or proceeding
by an exemplification or certified copy thereof, purporting to be under
the seal of the Court, or under the hand or seal of the Justice or
Coroner, as the case may be, without any proof of the authenticity of
the seal or of the signature of the Justice or Coroner, or other proof
whatever; and if any such Court, Justice, or Coroner has no seal, and
so certifies, then by a copy purporting to be certified under the signature
of a Judge or presiding Magistrate of the Court, or of the Justice or
Coroner, without any proof of the authenticity of the signature or other
proof whatsoever.n2
8
377 R.S.B.C., 1960, c. 134, s. 29.
378 See also Alberta Evidence Act, R.S.A., 1955, c. 102, s. 44; Manitoba Evidence
Act, R.S.M., 1970, c. E 150, s. 40(1), Evidence of any proceedings in or before,
or of any record of,
(a) any court within or outside the province, that has a seal; or
(b) any court without a seal, or person authorized to take evidence in
any part of the British Commonwealth or in the United States, or
any state, territoritory or possession thereof;
may be made in any legal proceeding by an exemplification or certified copy
thereof.
(2) The identity of any person charged in, or a party to, any such proceeding
with the person named in the exemplification or certified copy, if the name
is the same, shall until the contrary is shown, be presumed.
(3) The exemplification or certified copy is sufficiently authenticated if it
purports to be
(a) under the seal of the court, where the court has a seal; or
(b) under the hand of a judge of the court, where the court has no
seal; or
(c) signed by any other person who made it, where that person is
authorized to take evidence.
For the proof of official character, seal, or signature, see sec. 34; Saskat-
chewan Evidence Act, R.S.S., 1965, c. 80, s. 21. In re Bergman Estate, [1928]
1 W.W.R. 601 (Sask.); Newfoundland Evidence Act, R.S. Nfid., 1952, c. 120,
s. 17; Nova Scotia Evidence Act, R.S.N.S., 1967, c. 94, s. 19; New Brunswick
Evidence Act, R.S.N.B., 1952, c. 74, s. 69; Harris v. Garson (1921), 49 N.B.R.
91, 67 D.L.R. 682 (CA.); R. v. Wright (1877), 17 N.B.R. 363 (C.A.); also Cham-
pion v. Long (1834), 1 N.B.R. 426, under 5 Geo. 2, c. 7; Yukon Evidence Ordi-
nance, R.O., 1958, c. 37, s. 40; Northwest Territories Evidence Ordinance, R.O.,
1956, c. 31, s. 40.
No. 1]
RECOGNITION AND ENFORCEMENT
The Canada Evidence Act3 ” provides that:
23(1) Evidence of any proceedings or record whatsoever of, in, or before
any court in Great Britain… or any court in any province of Canada,
or any court in any British colony or possession, or any court of record
of the United States of America, or of any state of the United States
of America, or of any other foreign country,… may be made in any
action or proceeding by an exemplification or certified copy thereof,
purporting to be under the seal of such court,.., without any proof of
the authenticity of such seal … or other proof whatever;
(2) Where any such court …. has no seal, or so certifies, such evidence
may be made by a copy purporting to be certified under the signature
of a judge or presiding magistrate of such court.., without any proof
of the authenticity of the signature, or other proof whatsoever3 8 0
At common law proof of a foreign judgment is made by an
exemplification under the seal of the foreign court upon proof of
that seal.38 ‘ The authenticity of the seal of the foreign court may
be proved by a certificate under the seal of the foreign state.
The exemplification of the judgment must be under the seal
of the court in which it was given. The seal of another court is
not sufficient. 8 2 The authenticity of the seal may be proved by
witness.3 8 3 If in a foreign language, the foreign judgment must be
translated into English. The translation must be certified to be
a correct one3 8 4
The Hague Convention Abolishing the the Requirement of Le-
galisation for Foreign Public Documents concluded on October
5, 1961 has not yet been signed by Canada. Under this convention
Canada would exempt a foreign judgment from the formality by
which a Canadian diplomatic or consular agent would certify
the authenticity of the signature, the capacity in which the person
379 R.S.C., 1952, c. 307, as am., s. 23.
3s0 As to what constitutes a seal, see Beebe v. Tanner (1903), 6 Terr. L.R. 13
(C.A.) and Stephens v. Olson (1905), 1 W.L.R. 572 (N.W.T.) distinguishing
Junkin v. Davis (1857), 6 U.C.C.P. 408, 22 U.C.Q.B. 369 and Woodruff v. Walling
(1855), 12 U.C.Q.B. 501 and varying Stevens v. Olson et at. (1904), 6 Terr. L.R.
106.
381 Warener et al. v. Kingsmill and Davis (1850), 7 U.C.Q.B. 409 (C.A.), at
p. 410; “The mere exemplification… would of course be sufficient, if properly
proved to be under the seal of the court. That is the common proof given
of foreign judgments”. For other cases dealing with the proof of the seal
and exemplification see Pool v. Hill (1843), 4 N.B.R. 184 (C.A.); Norton v. Post
(1836), 5 0.S. 137; Hall v. Armour (1836), 5 0.S. 3 (C.A.).
382 Junkin v. Davis et al. (1857), 6 U.C.C.P. 408, 22 U.C.Q.B. 369; cf. Cyr v.
Sanfagon (1853), 7 N.B.R. 641.
338 Warener et al. v. Kingsmill and Davis (1850), 7 U.C.Q.B. 409 (C.A.).
384 In re Bergman Estate, [1928] 1 W.W.R. 601 (Sask.).
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[Vol. 17
signing the document has acted and, where appropriate, the identity
of the seal or stamp which it bears.
The only formality that may be required is the addition to the
judgment of a certificate in the form of a model annexed to the
Convention, to be issued by the competent authority of the state
where the judgment was rendered. This formality cannot be required
when the laws or practice in force in the state where the document
is produced have abolished or simplified it or exempt the judgment
itself from legalisation. This would seem to be the case in Canada.
The certificate will certify the authenticity of the signature, the
capacity in which the person signing the document has acted, and
where appropriate, the identity of the seal or stamp which the
document bears.
The signature, seal and stamp on the certificate are exempt
from certification.
The competent authority must also keep a register or card index
for the certificates.
Presumption of validity and burden of proof
There is a presumption in favour of the validity of a foreign
judgment until the contrary is shown.385 Thus it has been held
that the judgment is presumed to be in accordance with the
law of the country in which it was pronounced provided the foreign
court had jurisdiction8 6 and also that it is presumed to have been
pronounced by a court with jurisdiction. To establish absence of
jurisdiction the defendant must negative all of the grounds on
which the foreign court may have had jurisdiction.387 In other
words lack of jurisdiction must be pleaded as a defence.3 88 The
conclusiveness and finality of a foreign judgment is presumed
38 5 McPherson v. McMillan (1846), 3 U.C.Q.B. 34, at p. 37; Bonn v. National
Trust Co. (1930), 65 O.L.R. 633, [1930J 4 D.L.R. 820 (CA.), at p. 638; Wigston v.
Chowen (1964), 49 W.W.R. 543 (Sask.); Shearer & Co. v. McLean (1903), 36
N.B.R. 284 (CA.).
386 Shearer & Co. v. McLean (1903), 36 N.B.R. 284 (C.A.); The Star Kidney &
Pad Co. v. McCartny (1886), 26 N.B.R. 107.
387 See Beaty v. Cromwell (1883), 9 P.R. 547, at p. 549; McLean v. Shields
(1885), 9 O.R. 699; Brennan v. Cameron (1910), 1 O.W.N. 430; Deacon v. Chad.
wick (1901), 1 O.L.R. 346; Moritz v. Can. Wood Specialty Co. (1908), 17 O.L.R.
53 aff’d 42 S.C.R. 237.
38 8Kingsmill and Davis v. Warener and Wheeler (1852), 13 U.C.Q.B. 18, at
p. 48; Manning v. Thompson (1867), 17 U.C.C.P. 606 Fowler v. Vail (1879), 4
OA.R. 267, at p. 272; Swaizie v. Swaizie (1899), 31 O.R. 324, at p. 332; Shearer
& Co. v. McLean (1903), 36 N.B.R. 284.
No. 1]
RECOGNITION AND ENFORCEMENT
in favour of the plaintiff unless it is put in issue by the defendant’s
pleadings.38 9
When a plaintiff proves the existence of a foreign judgment in
his favour as prima facie evidence of the debt, the onus shifts to
the defendant to impeach it. If the defendant intends to dispute
the judgment he should put it in issue by his pleadings and not
rely on his failure to file a defence constituting a denial of all
obligations.390
Pleadings –
defences: special pleas
The contents and form of the statement of claim must be de-
termined by the lex fori. The plaintiff must state that the foreign
judgment was duly given or made although he need not set out
in full the foreign proceedings so long as his statement contains
enough information to enable the enforcing court to know what
was decided. Thus the plaintiff must indicate the place where the
foreign judgment was rendered, the name of the parties, the date
of the judgment and the amount recovered. The plaintiff is not
bound to set out the original cause of action 9′ Also the grounds
of the foreign judgment need not be stated, nor is it necessary
to state that the cause of action arose within the jurisdiction of
the foreign court3 9 This is not the case when the judgment is
pleaded as a defence.
If the foreign judgment is valid on its face, the defendant must
allege and prove any good reasons for which it should not be
enforced in the forum. The form of the defendant’s pleadings is
determined by the law of the forum.
389 Smith v. Smith, [1923] 2 W.W.R. 389, at p. 392, 17 Sask. L.R. 203, [1923]
2 D.L.R. 896 (CA.).
300 Thibodeau Machinery Co. v. Crown Iron Railing Co. (1964), 46 W.W.R.
246 (Sask); Manning v. Thompson (1867), 17 U.C.C.P. 606 (C.A.); Marshall v.
Houghton, [1922] 3 W.W.R. 65, at pp. 70-71, 68 D.L.R. 308, aff’d [1923] 2 W.W.R.
553, 33 Man. L.R. 166. If it is alleged that the foreign judgment is invalid accord-
ing to the law of the country where it was rendered the burden is on the party
attacking it to prove the foreign law. In the absence of such proof the courts
will presume that the proceedings were regular and valid. Re Bergman and
Waldron, [1923] 3 W.W.R. 70, 17 Sask. L.R. 497, [1923] 4 D.L.R. 56, at pp. 59-60
(CA.).
391 Shearer & Co. v. McLean (1903), 36 N.B.R. 284 (CA.).
39 2Kingsmill and Davis v. Warener and Wheeler (1852),
13 U.C.Q.B. 18,
affirming 8 U.C.Q.B. 407 (CA.); Prentiss v. Beamer (1847), 3 U.C.Q.B. 270 (CA.);
Kerby v. Elliott (1856), 13 U.C.Q.B. 367 (CA.); Gauthier v. Blight (1855), 5
U.C.C.P. 122 (CA.).
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It is generally admitted that in an action on a foreign judgment
the answer of the defendant may deny the existence of the judg-
ment or the plaintiff’s right to sue on it, or state any other reason
why it is not valid. Absence of jurisdiction, fraud, want of finality
and lack of natural justice must be raised by affirmative defenses
in special pleas. A general demurrer is not sufficient.
No defence may be set up which goes to the merits of the original
controversy or which, such as mere irregularities or errors, was
or might have been interposed in the original action or on appeal.
However in some provinces, as for instance in Manitoba, the de-
fendant has the right to plead afresh to the original cause of
action subject to the discretionary power of the court to deprive
him of this right in a proper case.393
In order to avail himself of the defence of payment or satisfaction
the judgment debtor must plead it in his defence. 94 Partial satis-
faction or partial release is also a good defence to the extent of
that payment or release.
When a domestic or foreign judgment is rendered upon the
original judgment, a payment of either discharges the obligation
of the other, even though the satisfaction of the second judgment
involves the payment of a smaller sum of money than the sum
required to discharge the original judgment. Until one of the
judgments is discharged, all remain in force. 396 The plea of satisfied
judgment means that the plaintiff having elected to have and
having taken the foreign judgment in discharge of his whole cause
of action, is estopped from being paid over again in the forum.
In an action on a foreign judgment the plea of nut tiel record
was bad396 but the former plea of never indebted was a good plea
of the general issue to a court in debt upon a foreign judgment.81
In Henebery v. Turnere9 s it was held that in an action on a
foreign judgment where the only defense was a denial of the
393 Lange v. Man. Western Colonization Co., [1921] 3 W.W.R. 877 (Man.) and
see section II (4), supra.
394 Bank of Ottawa v. Esdale, [1920] 1 W.W.R. 283, 51 D.L.R. 168, reversed
on other grounds [1920] 1 W.W.R. 913, 15 Alta L.R. 269, 51 D.L.R. 485. As to
proof of payment see Fore Street Warehouse Co. v. Vandelinder (1911), 18
W.L.R. 518 (Alta C.A.).
The defendant may plead that he had obtained a discharge in bankruptcy
in the original state, the effect of which was to release him from all claims
against his estate including that of the judgment creditor’s: Ohlemacher V.
Brown (1879), 44 U.C.Q.B. 366 (C.A.).
395 Taylor v .Hollard, [1902] 1 K.B. 676.
396 Hill v. Rowe (1885), 3 Man. R. 247.
397Graham v. Harrison (1889), 6 Man. R. 210 (C.A.).
No. 1]
RECOGNITION AND ENFORCEMENT
judgment, the plaintiff was not entitled to judgment upon the
pleadings and an exemplification of the judgment, as the plaintiff
must give evidence to connect the defendant with it and support
its genuineness when the defendant has put the judgment distinctly
in issue.
The defendants cannot set up a matter of defence for both which
applied only to one of them. 99
A plea of never indebted forces the plaintiff to prove the foreign
judgment so far as necessary to support the action.400
Pleading the statute of limitations
A plea of the statute of limitations may be interposed in a suit
on a foreign judgment.
The law as to limitations of actions on foreign judgments is a
matter of procedure governed by the lex fori.401
Since a foreign judgment creates a simple contract debt between
the parties and not a specialty debt, the liability of the defendant
arising on an implied contract to pay the amount of the foreign
judgment, the provision of the statute of limitations applicable
to a simple contract debt may be set up in answer to any action
on such a judgment.40 2
For instance in Ontario the period of limitations applicable to
a foreign judgment is six years.40 3 It was held that if the defendant
was absent from Ontario since the recovery of the judgment, the
398 (1883), 2 O.R. 284.
399 Bacon v. McBean (1847), 3 U.C.Q.B. 305 (C.A.).
400 Graham v. Harrison (1889), 6 Man. R. 210.
401 North v. Fisher (1884), 6 O.R. 206.
4O2In re Hamar; ex parte McGuinty & Co. (1921), 2 C.B.R. 137, 63 D.L.R. 241;
Barned’s Banking Co. Ltd. v. Reynolds (1875), 36 U.C.Q.B. 256, at p. 289; North
v. Fisher (1884), 6 O.R. 206; Stewart v. Guibord (1903), 6 O.L.R. 262; Rutledge
v. U.S. Savings and Loan Co. (1906), 37 S.C.R. 546; Brennan v. Cameron (1910)
1 O.W.N. 430; Wright v. Narovlansky, [1920] 1 W.W.R. 680 (Man.); The Bank of
Montreal v. Cornish (1879), Temp. Wood 272 (Man.).
403 North v. Fisher (1884), 6 O.R. 206; see also Rutledge v. U.S. Savings &
Loan Co. (1906), 37 S.C.R. 546, 26 C.L.T. 852, reversing 2 W.L.R. 47; The Limita-
tions Acts of the various provinces contain provisions dealing with “actions
on a judgment” but this must be interpreted as referring to domestic judg-
ments rather than foreign judgments. For instance, Alberta Limitation of
Actions Act, R.SA., 1955, c. 117, s. 5(i) “actions on a judgment or order for
the payment of money, -within ten years after the cause of action therein
arose”; Yukon Limitation of Actions Ordinance, R.O., 1956, c. 66, s. 3(1)(i);
Saskatchewan Limitation of Actions Act, R.S.S., 1965, c. 84, s. 1 (i).
McGILL LAW JOURNAL
[Vol. 17
plaintiff may sue him in that province any time within six years
after he has come within the jurisdiction, provided the judgment
has not been barred in the original court.404
In Bedell v. Gefaell4 5 an action was brought in Ontario on a
judgment obtained in the Supreme Court of New Jersey in 1937
which was founded on a judgment of a District Court of that
state in 1929. The Ontario court held that the action was barred,
like on a simple contract debt, in six years but the time began
to run not from the 1929 judgment, but from that in 1937 which
revived the earlier one.
In the case of a foreign decree for alimony payable in monthly
instalments, the statute of limitations does not run until an action
can be brought which is when the money is actually owing. Each
monthly instalment becomes a fixed amount payable under the
decree at the expiration of the particular month.40
It would seem to be more logical to apply to foreign judgments
the period of limitations applicable to domestic judgments.
The period of limitations will run from the date of the judgment
provided it is final.
The rule applying the limitations of the forum to all cases has
certainly the merit of simplicity and convenience. But is it a just
rule? After all, statutes of limitations are essentially made in favour
of the debtor. They create a presumption of payment. Justice requires
that litigation be put to an end once and for all. If the plaintiff
can shop around for a more favourable forum, the defendant
will be subject to continuous threats. Of course, all he has to do
is to pay what, after all, he owes to his creditor. However, it seems
that in this particular case, the equities should be in favour of
the debtor.
From a legal point of view it appears that, in general, the statute
of limitations has been improperly characterized. The law of the
country in which the right was created (e.g. in which the foreign
judgment was rendered) should also govern the existence and the
extinction of that right. This is why statutes adopting foreign time
limitations should be enacted. (Statute of comity or borrowing
statute). This represents a progressive solution. By specifically
stating that in an action on a foreign judgment the foreign statute
applies, the legislature simplifies the work of the courts, as it
404 Stewart v. Guibord (1903), 6 O.L.R. 262, 23 C.L.T. 242 (C.A.), applying s.
48 of the Ontario Limitations Act, R.S.O., 1960, c. 214.
405 [1938] O.R. 718, aff’d at p. 721, [1938] 4 D.L.R. 467.
406 Page v. Page (1915), 9 W.W.R. 442, 32 W.L.R. 854, 22 B.C.R. 185, 25 D.L.R. 99.
No. ii
RECOGNITION AND ENFORCEMENT
disposes of the difficult problem of characterization and the dis-
tinction between a bar to the remedy and the extinction of the
right. This solution is more likely to do justice to the litigants. 40 7
Judgment not responsive to the pleadings
Where the defendant defaulted in the original action he may
try to object to its enforcement, in the forum, on the ground that
it is null as not being responsive to the claims which were the
basis of the suit. If the defendant was present or represented by
counsel at the hearing, it will be presumed, that unless he objected
at the time, the foreign judgment is responsive to the pleadings,
whether they were oral or written. It is submitted that no such
distinction should be made. As long as the foreign court had juris-
diction over the parties and the subject matter, and the defendant
had notice of the suit and an opportunity to defend, he must be
bound by the decision. To say that the foreign judgment is not
responsive to the pleadings would be to reopen the merits of the
case.
Conclusion
Since the abolition of the traditional forms of action some of
the rules relating to pleadings are no longer applicable.
Stay of proceedings – Lis alibi pendens
In an action on a foreign judgment the defendant, upon proof
that he has taken an appeal abroad, will usually be entitled to a
stay of proceedings pending the determination of such appeal even
if no stay of execution upon the original judgment is imposed by
the foreign court.40
What is the effect of judicial proceedings instituted abroad to
enforce the foreign judgment upon an action on the foreign judg-
ment pending in the forum? Can the judgment debtor resist the
action on the ground of lis alibi pendens? This question may arise
quite frequently, as the judgment creditor will try to enforce the
foreign judgment simultaneously in several countries where the
40 7 1n B.C. see s. 55 of the Statute of Limitations, R.S.B.C., 1960, c. 370
(Limitation where cause of action arises abroad).
408 B.C. Rules of Court, Order 58, rule 2; May v. Roberts, [1929] 2 W.W.R.
449, 41 B.C.R. 185, [1929] 3 D.L.R. 370 (C.A.); Huntingdon v. Attrill (1887), 12
P.R. 36 (C.A.); Charlebois v. Great North West Central Railway (1893), 9 Man.
R. 286 (C.A.); Campbell v. Morgan, [19191 1 W.W.R. 644 (Man.); McKee v.
Verner (1910), 1 O.W.N. 833; Lindsay v. Papassimakes (1923), 23 O.W.N. 662.
McGILL LAW JOURNAL
[Vol. 17
debtor has some property, but in none of them enough to cover
the whole amount of the debt. The defendant will, therefore, be
harassed with two or more suits. Since these suits are all based
on a prima facie cause of action, no court will refuse to entertain
them and the defendant has the prospect of two or more domestic
judgments being given against him.
The fact that another action in person’am on the foreign judg-
ment is pending in a foreign country between the same parties
should be no bar to the action in the forum so long as it has not
been satisfied. To hold otherwise would impair the judgment
creditor, who must be able to reach the property of his debtor
wherever it is located before he is barred from doing so by the
statute of limitations. A multiplicity of actions is not per se vexatious
and oppressive. All the judgment debtor need do is to satisfy the
judgment.
Right to counterclaim
In an action upon a foreign judgment the defendant may file
a counterclaim. 40 9
Conflicting or consistent successive judgments
A conflicting or consistent successive judgment may be handed
down in a suit brought to enforce the first judgment, or in one
based upon the original cause of action, or where the first judg-
ment was for the defendant and constituted a bar to the prose-
cution of the second action, or where the first judgment has already
determined one or more of the relevant issues involved.
It is necessary to consider first the situation where a foreign
decision, sought to be enforced, conflicts or is consistent with a
former or subsequent domestic decision on the original cause of
action. In such a case it is obvious that the foreign decision should
have no effect in the forum.
Where there is a valid domestic judgment on the same cause
of action, the domestic rules of estoppel or res judicata would
prevent a foreign judgment from having any effect. Of course the
first judgment continues in full force and effect as res judicata
in the rendering state and can be used, if the judgnent creditor
so elects, as the basis for a suit in a third state even after it has
been reduced to a second judgment in another state. Thus a French
409 Thompson v. Scollard, [1929] 2 W.W.R. 466, 41 B.C.R. 241, [1929] 3 D.L.R.
857. See also Phillips v. Can. Polishes Ltd. (1924), 26 O.W.N. 50: stay of pro-
ceedings to deliver a defence and counterclaim.
No. 1]
RECOGNITION AND ENFORCEMENT
judgment could still be enforced in Ontario though it has been
made the basis of a second judgment in Manitoba; this judgment
could also be enforced in Ontario and so on, until one of them
is discharged.
This solution is based on the doctrine that the two judg-
ments being of equally high nature there is no merger of one into
another. It is consistent with the doctrine of non-merger as applied
to foreign judgments, although in that case it could be argued
that the French judgment being of an inferior nature to the Manitoba
judgment it is merged in it. Of course, on the practical side,
preservation of the original judgment may be of great advantage
to the plaintiff and the defendant may escape the inconvenience
of having several judgments against him by satisfying one of them.
It is also possible that litigation between the same parties or
their privies on the same subject matter is started in the competent
courts of two countries, and conflicting judgments are rendered.
For instance, where the plaintiff sues the defendant in state A
and in state B, and the court of A dismisses the action while the
court of B renders a judgment in his favour. If the plaintiff tries
to enforce B’s judgment in state C, can the defendant plead A’s
judgment in his favour as a bar; or if the courts of state C refuse
to enforce B’s judgment, will this decision be a bar to an action
to enforce it in state D? Although it has been suggested that the
earlier decision should prevail while others favoured the later
one, the true answer is that neither should be recognized. This
could easily be done on the ground of public policy.
Priorities and remedies
May a creditor, when or before he brings an action to enforce
a foreign judgment, take conservatory measures by private action
or upon court order and attach the property of his debtor, or
request the court to execute the foreign money judgment pro-
visionally. This is a matter of procedure to be determined according
to the lex jori.
Whether a foreign judgment may be used to attach the property
of the debtor, or whether a seizure by garnishment is possible,
depends upon the local statute or rules of court. A foreign money
judgment is generally considered as a debt or evidence of a debt
and, therefore, may be a cause of attachment of property or seizure
by garnishment. But in marshalling the assets of an insolvent, or
paying the debts of a decedent or in any other case in which
priority of claims becomes important, a foreign judgment is not
entitled to rank with a domestic judgment. It ranks merely as a
McGILL LAW JOURNAL
[Vol. 17
simple contract debt, although it may be filed as a claim. The
foreign judgment never creates a judicial lien. Similarly, provisional
execution is not possible. However, it has been said that a foreign
judgment sued on in Ontario is not thereby merged so that the
plaintiff would lose any priority to which he may be entitled in
respect thereof.410
A judgment creditor should only be allowed to take the con.
servatory measures which are available to persons who sue on the
original cause of action or on purely domestic causes. Since the
procedure followed in the case of enforcement of foreign judg-
ments generally is similar to that of domestic causes, there should
be an identity of remedies. In Ontario a person suing on a foreign
judgment is entitled only to the remedies available to a simple
contract creditor. Therefore, he may not be entitled to garnishee
a debt due to the defendant as a judgment creditor would be.411
So long as a foreign judgment is not considered on the same footing
as a domestic one, it cannot enjoy, in the forum, the privileges
which are granted to domestic judgments, since the very purpose of
the action is to extend these privileges to it.
Provisional execution should be rejected. If it were allowed, it
would defeat the purpose of the present system of enforcement
of foreign money judgments. This view stands, even if it is assumed
that provisional execution is subsequently validated or defeated,
depending upon the ultimate issue of the action on the foreign
judgment. Provisional and conservatory measures should be strictly
adapted to the nature of the foreign judgment in the forum.
Interest
Interest may be allowed on a foreign judgment from its date.412
In Bank of Montreal v. Cornish413 it was held that, at common
law, interest cannot be recovered on a foreign judgment, because
410 Grobe v. Buffalo & Fort Erie Ferry & Ry Co. (1916), 38 O.L.R. 272, at
p. 274. The case involved an action brought to enforce a mortgage made by
the defendant to secure bondholders. The plaintiff claimed priority in respect
of a foreign judgment.
411 Stewart v. Guibord (1903), 6 O.L.R. 262, 2 O.W.R. 554, 2 O.W.R. 168 (D.C.).
412 Ontario Judicature Act, R.S.O., 1960, c. 197, as am., s. 36(1); Bedell v.
Gefaell (No. 1), [1938] O.R. 718, [1938] O.W.N. 435, [1938] 4 D.L.R. 467 (CA.).
The interest must be paid as damages for the wrongful withholding of the
money, see also Hollender v. Ffoulkes (1894), 16 P.R. 175 (CA.). Cf. Martel v.
Dubord (1885), 3 Man. R. 598.
413 (1879), Temp. Wood (Man.) 272, at p. 283.
No. 1]
RECOGNITION AND ENFORCEMENT
although the law implies a promise to pay a sum of money adjudged
to be owing from one man to another by judgment of a foreign
court, it does not imply a promise to pay interest. Such interest
may, however, be allowed ex debito justitiae, in the shape of
damages for the wrongful detention of the debt created by the
foreign judgment.
Where interest is included in the amount of a foreign judg-
ment, it is an integral part thereof and will be included in the amount
of a local judgment given in an action on the foreign judgment.414
However, if the interest claimed on the amount of the foreign
judgment from the date of its entry is not payable by contract
or by statute and not awarded by the judgment as a continuing
obligation beyond the date of its entry, it is recoverable simply
as unliquidated damages and cannot be the subject of a special
endorsement. It is not a claim for a liquidated demand.
Rate of exchange
Canadian courts cannot order payment of money except in terms
of local currency, therefore where the amount of the judgment
sought to be enforced is expressed in a foreign currency, they must
convert that amount into dollars.415 This raises the important prob-
lem of selecting a proper date of conversion, for the rate of ex-
change prevailing on that date will be applied.
The enforcing court has the following choice: the date of the
breach of the obligation which was the cause of the original action,
the date of the foreign judgment, the date of the second judgment,
or the date of effective payment.
Under normal economic conditions the selection of any one of
these dates would be of little consequence. However, today, it is
likely that the rate of exchange between the countries involved in
414 Solmes V. Stafford (1893), 16 P.R. 78, 264; see also Macaulay Bros. v.
Victoria Yukon Trading Co. (1902), 9 B.C.R. 136, reversing 9 B.C.R. 27 (CA.).
Duff, J. in Livesley v. Horst Co., [1924] S.C.R. 605, at p. 610 “…in an action
upon such a judgment in an English court interest, if by the law of the
judgment itself it carries interest, is treated as an integral part of the judg-
ment debt, and the rate is accordingly calculated in conformity with the
requirements of that law, whatever the rate may be. If no interest is given
by the foreign law, none can be recovered in an action on the judgment in
an English court unless, of course, interest, being specified in the judgment,
is, by the terms of the judgment itself, part of the judgment debt”.
415 The Currency Mint and Exchange Fund Act, R.S.C., 1952, c. 315, as am.,
s. 11, “… any statement as to money or money value in any indictment or
legal proceeding shall be stated in the currency of Canada…”.
McGILL LAW JOURNAL
[Vol. 17
the suit will vary from day to day, thereby affecting the extent
of the respective obligations of the parties.
The measure of the foreign money is its value in domestic
currency as of the day when payment should have been made.
This is called the breach-day rule. The situation is assimilated to
the case of non-delivery of commodities owed. If enforcement of
a foreign judgment is applied for, the day when this judgment was
given in the original court has been considered as the “breach
day”.416
If instead of suing on the foreign judgment the plaintiff sues
on the original cause of action, for instance the breach of contract,
the damages would be assessed in local currency at the date of
that breach.417 The breach-day rule has been adopted by the
Reciprocal Enforcement of Judgments Act in force in most prov-
inces of Canada.41 8 Thus the Manitoba Act419 provides in section
5 as follows:
Conversion to Canadian currency
Where a judgment sought to be registered under this Act makes payable
a sum of money expressed in a currency other than the currency of
Canada, the registering court, or, where that court is Her Majesty’s Court
of Queen’s Bench for Manitoba, the master of that court, shall determine
the equivalent of that sum in the currency of Canada on the basis of the
rate of exchange prevailing at the date of the judgment in the original
court, as ascertained from any branch of any chartered bank; and the
registering court of the master, as the case may be, shall certify on the
order for registration the sum so determined expressed in the currency
of Canada; and, upon its registration, the judgment shall be deemed to
be a judgment for the sum so certified.
The breach-day rule does not take into consideration the insta-
bility of modern monetary systems. When the foreign currency has
depreciated in terms of the local currency, the breach-day rule
favours the plaintiff who will draw a considerable windfall from
it. On the other hand where the foreign currency has appreciated
after the breach-day in relation to the Canadian dollar, the appli-
cation of the rule results in a loss to the plaintiff.
416 Scott v. Bevan (1831), 2 B. & Ad. 78, 109 E.R. 1073; East Trading Co. Inc.
v. Carmel Exporters & Importers Ltd., [1952] 2 Q.B. 439, [1952] 1 All E.R. 1053,
[1952] W.N. 229.
417Di Ferdinando v. Simon, Smits & Co. Ltd., [1920] 3 K.B. 409, followed in
Quartier v. Farah (1921), 49 O.L.R. 187 (CA.). For an unsatisfactory decision
involving a foreign judgment see Bond v. Ives (1865), 6 N.S.R. 167.
418See section IV.
419 R.S.M., 1970, C. J 20.
No. 1]
RECOGNITION AND ENFORCEMENT
The rate prevailing on the day when the second judgment is
rendered is more satisfactory than any earlier dates although it
ignores the possibility of a change in value between the date of
the second judgment and that of actual payment. Of course the
debtor may still discharge his debt by paying the amount of the
original judgment in the foreign currency, since the second judg-
ment does not merge the first.
. It would be difficult for Canadian courts to adopt the rate of
exchange prevailing on the date of effective payment since on the
one hand they cannot render a decision expressed in a foreign
currency and on the other hand they do not know the rate of
exchange which will prevail on that day.
Where the original obligation involves the delivery of foreign
currency considered as a merchandise bought for resale in Canada
and a foreign judgment is rendered upon breach of that obliga-
tion, the rate of exchange prevailing on the day of the original
judgment seems to be more equitable than the date of effective
payment, since the creditor would be able to recover the profit
gained by the defendant for not delivering. However as the courts
do not inquire into the merits of the case, the rate of exchange
cannot depend upon the probable use which the creditor would
have made of the money on the due date.
In general, the payment-day rule avoids the flaws of the breach-
day or the second judgment-day rule. It eliminates the unsettling
factors of relative purchasing power fluctuations, not accurately
reflected in exchange rates or changes in the value of the award
between the breach-day or second judgment-day and the payment-
day. The converse is equally true, as the debtor may reap windfalls
through the breach or second judgment-day conversion when the
internal purchasing power decline of the local currency is less
than its exchange rate drop.
In view of federal legislation, the adoption of the rate of ex-
change prevailing at the time of when the second judgment is given,
as unsatisfactory as it may be, is certainly a lesser evil, so long
as no machinery is found for the adoption of the effective pay-
ment-day rule. Where the local currency has depreciated after the
day when the original judgment was given, it is unjustifiable to
impose upon a creditor a loss through depreciation caused by the
debtor’s default. The date of second-judgment rule would at least
produce the same result as the date of effective payment rule if
the judgment is paid at once.
Actually there seems to be no logical reason why a domestic
judgment should not be given for a sum of foreign currency or
McGILL LAW JOURNAL
[Vol. 17
its equivalent in Canadian dollars, at the time of collection of such
a sum.
Quebec judgments in Ontario
According to section 54 of the Ontario Judicature Act 420 where
an action is brought on a judgment obtained in Quebec, the costs
incurred in the judgment in that province are not recoverable with-
out the order of a judge directing their allowance. Such order will
not be made unless in the opinion of the judge they were properly
incurred nor if it would have been a saving of expense and costs
to have first instituted proceedings in Ontario on the original claim.
Conclusion
In the field of procedure, the most difficult problem is to devise
rules that will reconcile the conflicting interests of the debtor and
the creditor, and thereby promote a type of justice fair to all par-
ties. The debtor wants to delay, and if possible avoid execution
of the foreign judgment by raising defenses which have not pre-
vailed abroad, while the creditor wants a quick recovery of a debt
to which he is entitled according to this foreign judgment. Today
rapidity and fairness have not been attained because basically the
procedure followed by the Anglo-Canadian courts is that which
applies to ordinary actions. This procedure does not take into
consideration the fact that there has already been a complete trial
abroad.
Reforms are necessary. The enactment of a completely independ-
ent system of enforcement taking into consideration the nature
of the cause of action is a better solution.
There is no doubt that the execution of foreign judgments must
not be made possible without some kind of control. However, the
procedure of enforcement must not be too costly and too long,
otherwise, in international commerce, the creditor will tend to sell
his goods at a higher price in order to insure himself against the
risk of insolvency of his debtor. A simplified procedure for enforcing
foreign judgments would certainly be advantageous to creditors
and foster international commerce.
From a practical point of view, it seems that, under the present
practice, it would be better for the creditor, whenever circum-
stances permit, to institute proceedings directly in the country
where the debtor has some assets. This would save him time and
expense. It is useless to start a suit in a country where the debtor
420 R.S.O. 1960, c. 197, as am.
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RECOGNITION AND ENFORCEMENT
has no assets and then be forced to bring an action on that judg-
ment in another country, or eventually there sue again on the origi-
nal cause of action.
IV. Reciprocal Enforcement of Foreign Judgments
It would be difficult to maintain that the common law concep-
tion, that a foreign judgment is enforceable only upon a new action
brought in the forum, is devoid of any merits, since this view
would amount to a repudiation of the ordinary rules of procedure
prevailing in common law Canada. Yet the very fact that the
ordinary rules of procedure are followed, shows that this method
is inadequate, since the action will be subject to most of the in-
firmities of the ordinary local practice of the court where the
judgment is sought to be enforced. To be adequate the enforcing
procedure must take into consideration the very nature of the
foreign judgment. As Professor Yntema points out,
The common law method of enforcing foreign judgments enables the
courts, without hindrance of political considerations, to develop relatively
liberal doctrines as to the recognition (as distinguished from enforcement)
of foreign judgments and thus to obviate the expense involved in a reliti-
gation of the merits of the ordinary case… And in the second place,
the positivistic emphasis, under the prevailing common law theories, upon
the private international character of foreign judgments, is commendable
in that it avoids the inequity and impropriety of adjudicating what are
essentially private claims upon an individual basis of international reci-
procity,
but as he further points out these, would exhaust the chief virtues
of the common law method.4 1
The conception that the enforcement of a foreign judgment
must take the form of an ordinary action in personam upon the
debt, always results in unnecessary delay and expenses and in the
additional difficulty of securing jurisdiction over the person of
the judgment debtor. To a certain extent, these defects might pos-
sibly be cured by making the procedure of summary judgment
widely available for the enforcement of foreign judgments. This
method could be combined with the enactment of attachment and
garnishment statutes which would do away with the necessity of
service upon the person of the debtor, if some property belonging
to him can be found within the jurisdiction of the enforcing court.
However, these remedies do not dispense with the necessity of
bringing an action on the foreign judgment, with the result that
a new judgment will be handed down by the enforcing court.
421 The Enforcement of Foreign Judgments in Anglo-American Law, 33 Mich.
L. Rev. 1166 (1935).
McGILL LAW JOURNAL
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The failure of the common law system to provide for direct
enforcement of foreign money judgments, led judgment creditors
to believe that the Canadian practice was detrimental to the in-
terests of foreign creditors. They also considered the common law
rules indefinite and largely discretionary.
To remedy this situation, the Conference of Commissioners on
Uniformity of Legislation in Canada prepared a model Recipro-
cal Enforcement of Judgments Act which was approved in 1924,
amended in 1925, revised in 1956, amended in 1957, revised in
1958 and amended again in 1962 and 1967.422 This model Act unifies
the rules of practice relating to foreign money judgments and facili-
tates their enforcement. Today, this Act has been adopted, in some
cases with slight modifications, by Alberta, British Columbia, Mani-
toba, New Brunswick, Newfoundland, Ontario, Saskatchewan, the
Yukon and the North West Territories. 423 This is constitutionally
possible since, under section 92(14) of the British North America
Act, each Canadian province has exclusive control over the recog-
nition and enforcement of foreign money judgments. Since the Acts
in force in the Canadian provinces and Territories are similar in
most respects to the Alberta Act it will be used as a model here.
The purpose of the Reciprocal Enforcement of Judgments Act
is to create a new method or procedure for the enforcement of
foreign money judgments: 424
The Act simply provides an inexpensive and simple method of registering
and enforcing the judgments to which the Act applies instead of the more
lengthy and expensive method of enforcing such judgments by action4 2
422 (1925), 10 Proc. Can. Bar Assoc. 327, 351. 1956 Proceedings of Conference
of Commissioners on Uniformity of Legislation in Canada, 82; 1957, 25, 26,
111; 1958, 90; 1962, 108; 1967, 22. K. H. Nadelmarn, Enforcement of Foreign
Judgments in Canada (1960), 38 Can. Bar Rev. 68.
423The Reciprocal Enforcement of Judgments Act, S.A. 1958, c. 33; R.S.B.C.
1960, c. 331; I.R. Feltham, Reciprocal Enforcementt of Judgments Act (1959-63),
1 U.B.C. L. Rev. 229; R.S.M. 1970, c. J20; R.S.N.B. 1952, c. 192; S. Nfld. 1960,
No. 12; R.S.O. 1960, c. 345, as am. 1967, c. 85; R.S.S. 1965, c. 92. The Reciprocal
Enforcement of Judgments Ordinance, R.O.Y.T. 1958, c. 95; R.O.N.W.T. 1956,
c. 82, as am. 1958, c. 7, 1963, c. 24.
424The Reciprocal Enforcement of Judgments Acts in force in the provinces
of Alberta, British Columbia, Manitoba, and Newfoundland, apply to foreign
judgments obtained in a jurisdiction in or outside Canada. The Reciprocal
Enforcement of Judgments Acts in force in the provinces of Ontario, New
Brunswick, Saskatchewan, the Yukon, and Northwest Territories, apply to
foreign judgments obtained in another province or territory of Canada only.
425 Can. Credit Men’s Trust Association v. Ryan et al, [1930] 1 D.L.R. 280,
[1929J 3 W.W.R. 403 (Alta), at p. 281.
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RECOGNITION AND ENFORCEMENT
However, the Act does not make the foreign judgments to which
it applies any less foreign or any more directly enforceable than
before the Act was passed. It does not alter the rules of conflict
of laws as to the recognition to be given to foreign judgments. 426
The Act expressly preserves the judgment creditor’s right to bring
an action on his judgment, or on the original cause of action, in-
stead of proceeding under the Act, or even after proceedings have
already been taken under the Act. 427
Before a judgment creditor may avail himself of the provisions
of the Reciprocal Enforcement of Judgments Act, the Lieutenant-
Governor of the province must by order have declared the juris-
diction, in which the foreign judgment was obtained, to be a re-
ciprocating jurisdiction.428 Reciprocity on the interprovincial or
international level is the basis for the application of the Act. To
declare the original court a reciprocating jurisdiction, the Lieu-
tenant-Governor in Council must be satisfied that reciprocal pro-
visions exist in that jurisdiction for the enforcement therein of
judgments obtained in the registering court.4 29
The judgment which may be registered is:
… a judgment or order of a court in a civil proceeding, whether given or
made before or after the commencement of this Act, whereby a sum
of money is made payable, and includes an award in an arbitration pro-
ceeding if the award, under the law in force in the jurisdiction where
it was made, has become enforceable in the same manner as a judgment
given by a court in that jurisdiction, but does not include an order for
the payment of money as alimony or as maintenance for a wife or former
wife or a child, or an order made against a putative father of an unborn
child for the maintenance or support of the mother thereof. 430
The statutory definition has been interpreted by the courts in
various provinces. In Re Reciprocal Enforcement of Judgments Act;
Re Paslowski v. Paslowski481 the Manitoba Court of Queen’s Bench
stated that the definition of “judgment” in the Manitoba Act was
426 Ibid., at p. 282.
427 S.A. 1958, c. 33, s. 11.
428 Ibid., s. 10 (1). For instance in Ontario the Act applies to Alberta, British
Columbia, Manitoba, New Brunswick (R.R.O. 1960, Reg. 535), Sask. (C.R.O.
Reg. 350, s. 1), Northwest Territories (0. Reg. 192/55, s. 1), Newfoundland (0.
Reg. 225/61).
order made under subsection (1) of section 10.
429 Under section 10 (2), the Lieutenant-Governor has power to revoke any
43 0 SA. 1958, c. 33, s. 2(1)(a). In the Acts of Ontario, New Brunswick and
Saskatchewan the last part of the definition starting witth “but does not
include an order for the payment of money as alimony…” is omitted.
431 (1957), 22 W.W.R. 584 (Man.).
McGILL LAW JOURNAL
[Vol. 17
confined to final judgments for the payment of money only and
excluded judgments which gave other additional relief.4 32 A Sas-
katchewan order for judicial separation and maintenance that was
subject to review was not “final”, and could not be registered under
the Act.433
In Koven v. Toole 434 the Manitoba Court of Appeal held that
a judgment for costs is not registrable under the Reciprocal En-
forcement of Judgments Act. However, in Cavanagh v. Lisogar,31
the Alberta court rejected the reasoning of Koven v. Toole,43 6 and
held that an Ontario judgment, which was in part a judgment for
costs, could be enforced by registration under the Act. The court
was of the opinion that the test of registrability under the Act is
whether the foreign judgment sought to be registered was a final
judgment abroad, that is, whether it finally disposed of the rights
of the parties.437 Once it is determined that the foreign judgment
was final and conclusive, and that a debt or obligation existed, the
judgment is registrable under the Act; the “debt or obligation”
embodied in the foreign judgment can be either exclusively or in
part for costs.4 38
The Reciprocal Enforcement of Judgments Act also defines
“judgment creditor”, “judgment debtor”, “original court”, “reg-
istering court”,43 9 “state”,”0 and “personal service”.441 In spite of
these definitions some differences of interpretation have occured.
For example, the word “person”, as used in the definition of “judg-
ment creditor”, 2 and “judgment debtor”,443 has a broader mean-
(Man.).
432 Ibid., at p. 587. Now see s. 3(8) of the Manitoba Act which is intended
to overcome the effect of this decision. This section was also added to the
Uniform Act in 1962, see 1962 Proceedings 108.
433 Ibid.; Re Fleming and Fleming (1959), 28 W.W.R. 241, 19 D.L.R. (2d) 417
434 (1954), 13 W.W.R. 444, [1954] 4 DJ..R. 856 (Man. CA.) noted and criticized
by D.M. Gordon (1954), 32 Can. Bar Rev. 1146.
435 (1956), 19 W.W.R. 230 (Alta).
436 (1954), 13 W.W.R. 444 (Man. C.A.).
437 (1956), 19 W.W.R. 230, at p. 232.
438 Ibid.
439 SA. 1958, c. 33, s. 2(1)(b)(c)(d)(e).
440 “State” is defined only in the Reciprocal Enforcement of Judgments Act
441 “Personal service” is defined only in the Acts of Manitoba, Alberta, British
of Newfoundland, 1960, No. 12, s. 2(1)(f).
Columbia, and Newfoundland.
442 “Judgment creditor means the person by whom the judgment was
obtained…” SA. 1958, c. 33, s. 2(1)(b).
4 3 “Judgment debtor means the person against whom the judgment was
given…” SA. 1958, c. 33, s. 2(1)(c).
No. 1]
RECOGNITION AND ENFORCEMENT
ing in British Columbia than in Alberta. According to the British
Columbia Interpretation Act,4″ a person includes “any corporation,
partnership, or party, and the heirs, executors, administrators, or
other legal representatives of such person, to whom the context
can apply according to law”.445 On the other hand, according to
the Alberta Interpretation Act
6 “partnership” is not included in
the definition of “person”.447 Due to these differences, in Alberta,
a judgment creditor may have difficulties in trying to register a
judgment obtained in British Columbia against a partnership. Thus
in Can. Credit Men’s Trust Association v. Ryan et al. 4
4 the Alberta
Supreme Court, in setting aside an order for registration, under
the Alberta Reciprocal Enforcement of Judgments Act, of a default
judgment obtained in British Columbia, held that “a partnership
firm is not a person within the meaning of this Act even if, it can
be said to be treated as such for any purpose by the law of the
place in which the original judgment was obtained”. 49
One of the grounds why the Alberta court would not allow
registration of this judgment was that the defendant in the original
action was a partnership firm which is not included in the mean-
ing of “person”, as used in the definition of “judgment debtor”4 50
The fact that in British Columbia, a partnership is included in
the definition of “person”, seems to have been irrelevant. In On-
tario, Kerwin, J. expressed a contrary opinion 51
Registration: Method and Effect
Where a foreign judgment has been given in a court in a reci-
procating jurisdiction, the judgment creditor may, within six years
after the date of the judgment, apply to the Supreme Court or a
district court of the province in which registration is sought, for
444 R.S.B.C. 1960, c. 199.
445 Ibid., s. 24 (f).
446 SA. 1958, c. 32.
4471bid, s. 21(1)(t). In the Alberta Interpretation Act, s. 21(1)(t) defines
“person” as: “person” includes a corporation and the heirs, executors, ad-
ministrators or other legal representatives of a person.
448 [1929], 3 W.W.R. 403, [1930] 1 D.L.R. 280 (Alta).
44 Ibid., at p. 406.
450SA. 1958, c. 33, s. 2(1)(c); supra, footnote 447.
451 Re Tangye and Smith Ltd. v. The Pelican Carbon Company of Canada,
[1935] O.R. 123, at p. 126, [1935] 1 D.L.R. 759, at p. 761, (1935) 44 O.W.N. 83,
at p. 86.
McGILL LAW JOURNAL
[Vol. 17
an order for registration and the court may order the judgment
to be registered accordingly. 45 2
An order for registration may be made ex parte “in any case
in which the judgment debtor, (a) was personally served with pro-
cess in the original action, or (b) though not personally served,
appeared or defended, or attorned or otherwise submitted to the
jurisdiction of the original court”.453 Where an application for an
order may not be made ex parte, reasonable notice of the applica-
tion by the judgment creditor for the order for registration must
be given to the judgment debtor.454
It is within the discretion of the judge to grant an order for
registration made on an application ex parte. He is under no obli-
gation to hear the application and grant the order ex parte, simply
because the judgment debtor was personally served, or appeared
or otherwise submitted to the jurisdiction of the original court.40 5
The order for registration “may be made ex parte in any case in
which the judgment debtor was personally served with process in
the original action”.456 In Wedlay v. Quist 457 the Alberta Court of
Appeal, held that the words “personally served” mean service within
the jurisdiction of the original court.4 8 This interpretation was re-
452 SA. 1958, c. 33, s. 3(1); In the provinces of New Brunswick, Newfoundland,
and British Columbia, the judgment creditor may apply to the supreme court
of that province to have the judgment registered.
In the Yukon and Northwest Territories, the judgment creditor may apply
to the Territorial court for registration of the judgment.
In Manitoba and Saskatchewan, the judgment creditor may apply to the
“proper court” for registration of the judgment.
In Ontario, the Reciprocal Enforcement of judgments Act was amended
in 1967, and the Act now states that a judgment creditor may apply to any
court in Ontario having jurisdiction over the subject-matter of the judgment
in the place where the debtor resides, or, notwithstanding the subject-matter,
to the Supreme Court for registration of the judgment, S.O., 1967, c. 85, s. 1.
453lbid., s. 3(2). In the Reciprocal Enforcement of Judgments Acts of
Alberta, Manitoba, Newfoundland, and British Columbia, there is also the
additional requirement, before an order for registration may be made ex
parte, that the time for appeal against the judgment has expired, and that
no appeal is pending, or that an appeal has been made and has been dismissed.
454 Ibid., s. 3(5).
455 Wedlay v. Quist (1953), 10 W.W.R. 21 (Alta C.A.).
456 SA. 1958, c. 33, s. 3(2)(a).
457 (1953), 10 W.W.R. 21 (Alta CA.).
45I Ibid., at p. 24. And see Re Reciprocal Enforcement of Judgments Act,
Hoffman Lbr and Supply Ltd. v. Auld and Davis Lbr Co. Ltd. v. Auld (1958)
24 W.W.R. 552 (B.C.) no longer applicable in British Columbia.
No. 1]
RECOGNITION AND ENFORCEMENT
pudiated by the 1958 Model Act 459 which states that “service shall
not be held not to be personal service merely because the service
is effected outside the jurisdiction of the original court”.460 Since
the registration of a foreign judgment under the Reciprocal En-
forcement of Judgments Act is an extraordinary remedy, the court
should consider the application for an order for registration very
carefully and make the order with extreme caution and on very
clear facts.461 Once the court makes the order, “registration may
be effected by filing the order and an exemplification or a certified
copy of the judgment with the clerk of the court in which the
order was made, whereupon the judgment shall be entered as a
judgment of that court”.462
In all cases where registration is made on an ex parte order,
notice shall be served upon the judgment debtor within “one month”
after the registration or within such time as the registering court
may order. 46 3
According to Re Reciprocal Enforcement of Judgments Act;
Wigston v. Chowen 464 the “one month” is calculated from the date
of filing with the registrar a copy of the judgment and not from
the date of the authorizing order for registration. After he has been
given notice of the registration, the judgment debtor may apply
to the registering court within one month to have the registration
set aside, and the court may set it aside upon any of the grounds
listed in subsection (6) of section 3 of the Act and upon such
terms as the court thinks fit 65 In his application for an order
459 1958 Proceeding, p. 90, s. 2(2).
460 “Personal service” is thus defined in the Reciprocal Enforcement of
Judgments Acts in force in the provinces of Alberta, s. 2(2), Manitoba, s. 2(2),
British Columbia, s. 2(2), and Newfoundland, s. 2(2).
46 lHausman v. Franchi, [1949] O.W.N. 695 (Ont.).
462 S.A. 1958, c. 33, s. 3(7). Section 4 of the Alberta Reciprocal Enforcement
of Judgments Act states that where the judgment sought to be registered
makes payable a sum of money expressed in currency which is not Canadian,
the registering court or the clerk of the Supreme court, where the Supreme
court is the registering court, shall determine the equivalent of that sum in
Canadian currency on the basis of the rate of exchange prevailing at the date
of the entry of the judgment in the original court.
Section 5 of the same Act states that where a judgment is in a language
other than the English language, the judgment shall have attached to it a
translation in the English language approved by the court.
463Ibid., s. 7(1)(a).
464 (1964), 49 W.W.R. 543 (Sask.).
465 S.A. 1958, c. 33, s. 7(1)(b), (2). Under section 7(2), the court is given
wide discretion to permit or refuse registration.
McGILL LAW JOURNAL
[Vol. 17
setting aside registration, the judgment debtor must state, in the
notice of motion, all the grounds upon which the foreign judgment
should not be registered. The judgment debtor is confined to the
grounds set out in his application and, he may not be allowed
during the hearing of this application to raise grounds or defences
not listed therein.416
Once the judgment is registered under the Reciprocal Enforce-
ment of Judgments Act, it is, from the date of registration, of the
same force and effect as if it had been a judgment given originally
in the registering court on the date of the registration.46 7 Proceed-
ings may then be taken thereon accordingly, except in the case of
registration pursuant to an ex parte order, in which case no sale
or other disposition of the judgment debtor’s property will be valid
if made prior to the expiration of the one month period, or such
further period as the court orders, within which the judgment
debtor could have moved to set aside the registration. 468
Although the registering court has the same control and juris-
diction over the registered judgment as it has over judgments given
by itself,469 this control and jurisdiction is limited to the enforce-
ment of the registered judgment only. As stated in Lupton v. Lup-
ton,470
the Reciprocal Enforcement of Judgments Act must be
confined to the enforcement of judgments only; the registering
court has no power to modify or vary or reduce the terms of a
registered judgment.
Defences to an Application for Registration
The defences available to a judgment debtor, on which regis-
tration of a judgment may be set aside, are listed in a separate
section in the Reciprocal Enforcement of Judgments Act in force
in each province and territory with the exception of New Bruns-
wick where they are to be found in the Foreign Judgments Act.47’
The first ground listed in the Reciprocal Enforcement of Judg-
ments Act, on which the judgment debtor may attempt to prevent
466 Jackson v. Jackson, [1950] 1 W.W.R. 900, at p. 903 (B.C.), Sask. Rule of
Court 466 and Sask. Act, s. 7.
467 SA. 1958, c. 33, s. 6(a); see also Oliver & Co. v. Gilroy, [1959] O.R. 316,
18 D.L.R. (2d) 280.
468 Ibid.
469 Ibid., s. 6(b).
470 [1946] O.W.N. 326 (Ont.). In this case, the Ontario court held that it had
no power to modify a judgment for alimony obtained in British Columbia,
and registered under the Ontario Reciprocal Enforcement of Judgments Act.
471 R.S.N.B. 1952, c. 90.
No. 1]
RECOGNITION AND ENFORCEMENT
registration of a judgment, is lack of jurisdiction by the original
court to adjudicate on the subject-matter.
3(6) “No order for registration shall be made if it is shown
by the judgment debtor 472 to the court to which applica-
tion for registration is made that,
a) the original court acted either
(i) without jurisdiction under the conflict of laws rules
of the court to which application is made, or
(ii) without authority under the law of the original
court to adjudicate concerning the cause of action
or subject matter that resulted in the alleged judg-
ment or concerning the person of the alleged judg-
ment debtor, or without such jurisdiction and
without such authority”.473
Do the words “by the judgment debtor” in clause (6) of section
3 of the Alberta Act 474 mean that the onus lay totally on him to
show why the judgment is not registrable, and if he is unable to
do so, is the court in which registration is sought under an obliga-
tion to make an order for registration of the foreign judgment?
This question was considered by the Manitoba Court of Appeal in
Saskatchewan Government Insurance Office v. Anderson,47 which
involved an application for registration in Manitoba of a default
judgment obtained in Saskatchewan. The court in refusing the
application held that the words “by the judgment debtor” are not
to be applied literally. The court is not prevented from refusing
registration merely because the judgment debtor himself did not
point out why the judgment was not to be registered. If, on the
face of the judgment itself and from the facts of the case, suffi-
4 72 The words “by the judgment debtor” are omitted in the Reciprocal En-
forcement of Judgments Acts in force in the provinces of Saskatchewan,
Manitoba, Ontario, the Yukon and the Northwest Territories.
473S.A. 1958, c. 33, s. 3(6)(a)(i), (ii). In the Reciprocal Enforcement of Judg-
ments Acts in force in the provinces of Saskatchewan, Ontario, the Yukon
and the Northwest Territories, the wording of the section is not as long as
that of subsection (a) of section 3 of the Alberta Act, and instead, the fol-
lowing words are used: “(a) the original court acted without jurisdiction”.
(R.S.S. 1965, c. 92, s. 4(a)).
474 S.A. 1958, c. 33.
475 (1966), 57 W.W.R. 633 aff’d (1967), 59 W.W.R. 313, 61 D.L.R. (2d) 355
(Man. CA.) approved by Re Gacs and Maierovitz (1968), 68 D.L.R. (2d) 345
(B.C.).
McGILL LAW JOURNAL
[Vol. 17
cient cause appears why the foreign judgment should not be regis-
tered, it is the court’s duty to refuse registration.4 76
The court may also refuse to give an order for registration if
it is satisfied that:
… the judgment debtor, being a person who was neither carrying on
business nor ordinarily resident within the jurisdiction of the original
court, did not voluntarily appear or otherwise submit during the pro-
ceedings to the jurisdiction of that court.477
It was on this ground that registration of the foreign judgment
was refused in Hausman v. Franchi47
1 and Re Reciprocal En-
forcement of Judgments Ordinance, Traders Group Limited v. Hop-
kins et al.4 7
9
In the latter case, the judgment creditor made an ex parte
application to the Northwest Territorial court for registration of
a default judgment obtained in British Columbia against the de-
fendants at all times resident in the Northwest Territories. The
defendants had been served in the Northwest Territories but had
not appeared. The plaintiff maintained that the jurisdiction of the
British Columbia court was based on consent. The enforcing court,
on dismissing the application, held that the onus was on the plain-
tiff to prove that the defendants had agreed to submit to the
jurisdiction of the British Columbia court. The plaintiff could not
discharge the burden of proof as the language of the contract en-
tered into between the plaintiff and defendants and offered in
evidence was too ambiguous.
In Re Reciprocal Enforcement of Judgments Act, Re Duncan and
Hirsch,4 0 the meaning of the term “ordinarily resident”, as used
in section 3 (6) (b) of the Alberta Act 4 ‘ was clarified. The Alberta
District Court, on deciding that the judgment debtor was not “or-
dinarily resident” within the jurisdiction of the original court, held
476 See Model Act 1967 Proceedings of Commissioners on Uniformity of
Legislation in Canada 22 “No order for registration shall be made if the court
to which application for registration is made is satisfied…”.
477 S.A. 1958, c. 33, s. 3(6) (b).
478 [1949] O.W.N. 695 (Ont.). In this case, the Ontario court dismissed an
application for registration of a judgment rendered in British Columbia
because the judgment debtor had a good defence as he was not resident in
British Columbia, nor carried on business in that province, and did not volun-
tarily submit during the proceedings to the jurisdiction of the British Columbia
court.
479 (1969) 66 W.W.R. 573 (N.W.T. C.A.),
(1969) 1 D.L.R. (3d) 416 affirming
(1968) 64 W.W.R. 698.
480 [1952] 3 D.L.R. 850, (1952) 4 W.W.R. 475 (Alta).
481S.A. 1958, c. 33, s. 3(6) (b).
No. 1]
RECOGNITION AND ENFORCEMENT
that “the term ‘ordinarily resident’… simply means that the per-
son so described has his ordinary or usual place of living within
that Province, that he lives within that Province more than he
does elsewhere… If such person departs from [that Province]
under circumstances which render it unlikely that he will return
he is no longer ordinarily resident within the Province”.482
Another ground, listed in the Reciprocal Enforcement of Judg-
ments Act, on which the court may set aside an application for
an order for registration of the foreign judgment is that: 483
… the judgment debtor, being the defendant in the proceedings, was
not duly served with the process of the original court and did not
appear, notwithstanding that he was ordinarily resident or was carrying
on business within the jurisdiction of that court or agreed to submit
to the jurisdiction of that court.
This defence was raised by the judgment debtor in attempting to
set aside an application for registration in Re Reciprocal Enforce-
ment of Judgments Act, Re Hearn v. Kemp and Kemp,41 and Re Gacs
and Maierovitz.485 In the former case, the judgment debtors argued
that they had not been duly served with the appointments for exami-
nation-for-discovery. The Alberta Supreme Court rejected this argu-
ment because, on examining the facts of the case, it appeared that
due to the judgment debtors’ negligence in failing to notify the
registrar of the original court of their change of address, the
appointments had been served at their original address and they
had never reached them. In the latter case, which was relied upon
by the Alberta court, the British Columbia Supreme Court held,
on rejecting the defence that the judgment debtors had not been
“duly served”, that personal service with the process of the
original court was not necessary for due service; substituted serv-
ice was sufficient and amounted to due service. In both cases a
distinction was made between personal service and service duly
made. Common law authorities, to the effect that a defendant who
agrees to submit to the jurisdiction of a foreign court also agrees
to waive notice of the proceedings, have no application. The de-
fendant must have been duly served and must have appeared in
the foreign proceedings.
There are other grounds on which an order for registration may
be refused. For example, where the judgment was obtained by
482 Re Duncan and Hirsch, [1952] 3 D.L.R. 850, at p. 852 (Alta).
483 S.A. 1958, c. 33, s. 3(6)(c).
484 (1969), 70 W.W.R. 609 (Alta).
485 (1968), 68 D.L.R. (2d) 345 (B.C.).
McGILL LAW JOURNAL
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fraud; 48 0 where an appeal is pending or the time within which an
appeal may be taken has not expired;487 where the judgment was
in respect of a cause of action that for reasons of public policy
or for some similar reason would not have been entertained by
the registering court.488 This last ground was raised by the judg-
ment debtor as a defence to an application for registration in Re
Reciprocal Enforcement of Judgments Act; MacKowey v. MacKo-
wey.49 The British Columbia Supreme Court held that an Alberta
judgment, which related to arrears of alimony or maintenance due
under a covenant in a separation agreement, was not one “in
respect of a cause of action which for reasons of public policy
would not have been entertained by the registering court”; on the
other hand a judgment which dealt with alimony payable in futuro
was not enforceable in British Columbia. 90
In Pope v. Pope491 the judgment debtors applied in British
Columbia to have an order for registration of a judgment obtained
in Ontario set aside on the grounds that the original cause of
action was based on a contract or agreement which was illegal,
and for reasons of public policy the judgment should not be
registered by the British Columbia court. The contract related
to funds to be provided by the defendant’s second wife as support
for the defendant’s first wife after the dissolution of a marriage
between the defendant and his first wife, the plaintiff. The plaintiff
sued for arrears of payment, due under the contract, and received
judgment in Ontario against the defendant and his second wife,
the judgment debtors. The British Columbia Court of Appeal rejected
the defence of illegality of the contract. That defence had already
been pleaded by the judgment debtors in the original action in
Ontario and had been rejected by the Ontario court as a defence
to the original judgment. The contract was not made illegal simply
because the defendant’s second wife came forward to supply the
money in order to carry out the agreement for support to be given
to the defendant’s first wife.492
486 SA. 1958, c. 33, s. 3(6) (d).
4SIbid., s. 3(6)(e).
488Ibid., s. 3(6)(f).
489 (1955), 14 W.W.R. 190 (B.C.).
490 (1955), 14 W.W.R. 190 (B.C.), at p. 191.
491 [1940] 2 W.W.R. 509, 55 B.C.R. 277, [1940] 3 D.L.R. 454 (B.C.C.A.), affirming
[1940] 1 W.W.R. 566, 55 B.C.R. 27, [1940] 2 D.L.R. 661.
492 [1940] 2 W.W.R. 509 (B.C.C.A.), at p. 513.
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RECOGNITION AND ENFORCEMENT
The last ground, listed as clause (g) in section 3(6) of the
Reciprocal Enforcement of Judgments Act 4 93 on which an order
for registration may be set aside is that:
… the judgment debtor would have a good defence if an action were
brought on the original judgment.494
This clause enables a judgment debtor to raise a defence based on
any of the common law rules. Unless the foreign judgment is one
which would be enforced by action thereon at common law, it
cannot be registered under the Act.4 95 Section 3(6)(g) is quite
restrictive.
In Re Tagye and Smith Ltd. v. The Pelican Carbon Company of
Canada,495 permission to register in Ontario a default judgment
obtained in British Columbia was refused on the ground that the
judgment debtor would have a good defence if an action were
brought on the original judgment. The “good defence” was that
the case did not come under any one of the well-known rules
97 The
giving jurisdiction to the British Columbia Supreme Court
defendant who had been personally served with the British Columbia
writ in Ontario had never appeared. He had never resided in
British Columbia but had made periodic business trips to that
province on behalf of the firm of which he was the owner. This
was not carrying on business within section 4(b) of the Act. The
court said that even if it were it would not be a valid answer to a
493 SA. 1958, c. 33.
494 In the case of Re Guildhall Insurance Co. and Jackson et al (1968), 69
D.L.R. (2d) 137, at p. 139, the Supreme Court of Alberta held that the phrase
“original judgment”, as used in clause (g) of section 3(6) of the Alberta Reci-
procal Enforcement of Judgments Act, S.A. 1958, c. 33, could not be construed
to mean “original cause of action”. In other words, clause (g) could not be
interpreted to mean that there could be no registration if the judgment debtor
could show that he would have had a good defence if an action were brought
on the original cause of action for such an interpretation would lead to a
trial de novo of the action. The phrase merely empowered the court to look
into the finality of the judgment and the jurisdiction of the court which
made it.
4a9 Can. Credit Men’s Trust Association, Ltd. v. Ryan et al., [1930] 1 D.L.R.
280, at p. 281 (Alta). The court also stated that the Act did not alter the
rules of private national law as to the recognition to be given to foreign
judgments (at p. 284).
496 [1935] O.R. 123, [1935] 1 D.L.R. 759.
497 Ibid., at p. 125. In Saskatchewan and New Brunswick, the question of
jurisdiction of the court of a foreign country is governed by the Foreign
Judgments Acts in force in those provinces. R.S.S. 1965, c. 95; R.S.N.B. 1952,
c. 90.
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defence of lack of jurisdiction raised under the terms of section
4(g). As carrying on business is not a basis of jurisdiction in
personam over an individual at common law, the judgment could
not be registered.
In Re Gacs and Maierovitz498 the judgment debtor had a good
defence to an action on the judgment brought in British Columbia
as it was perceivable on the face of the writ itself that there was
a manifest error in the judgment obtained in Ontario0 0 The judg-
ment had included sums for interest not chargeable or allowable
in law. As a result an application to register in British Columbia
the Ontario judgment was dismissed 00
In Re House of Colour Ltd. v. Expert Decorators Ltd. et al., 10
the Supreme Court of British Columbia again stated that a foreign
default judgment cannot be registered in British Columbia where
a manifest error in the judgment is shown. However in this case
the court granted an order for registration of the Alberta judgment
as the judgment debtor had not sufficiently demonstrated such
manifest error by merely alleging in his affidavit that the judgment
was obtained against him by reason of the improper or negligent
advice of his solicitor.
Other grounds have been raised as a “good defence if an
action were brought on the original judgment”‘ 0 2 in order to prevent
the registration of a foreign judgment under the Act. Thus in
Re Reciprocal Enforcement of Judgments Act; Wigston v. Chowen,503
the Saskatchewan Court of Queen’s Bench, referring to the Foreign
Judgments Act,5 ‘4 stated that one such defence was “that the
proceedings in which the judgment was obtained were contrary
to natural justice”.5 5 The judgment debtor pleaded this defence
but the facts of the case revealed that the proceedings were not
contrary to natural justice, and the application to set aside the
registration in Saskatchewan of a foreign judgment, obtained in
Ontario, was dismissed. It was on account of the judgment debtor’s
own negligence that a default judgment had been obtained against
him; the judgment debtor knew that an action had been com-
498 (1968), 68 D.L.R. (2d) 345 (B.C.).
499 Ibid., at p. 351.
500 The Court relied on Boyle v. Victoria Yukon Trading Co. (1902), 9 B.C.R.
213, at p. 217.
501 (1968), 70 D.L.R. (2d) 527 (B.C.).
502 S.A. 1958, c. 33, s. 3(6) (g).
503 (1964), 49 W.W.R. 543 (Sask.).
504 R.S.S., 1953, c. 87.
505Ibid., s. 6(i); (1964), 49 W.W.R. 543, at p. 544 (Sask.).
No. I]
RECOGNITION AND ENFORCEMENT
menced against him in Ontario, but he chose to do nothing and
failed to keep his solicitors advised as to his whereabouts.
The Manitoba Court of Queen’s Bench, in the case of Gagnon
v. Safety Freight Limited,0 6 held that a credit in the judgment
debtor’s favour, arising prior to the Ontario judgment, that reduced
the amount of the foreign judgment owing to the judgment creditor,
and which was admitted by the judgment creditor, did not con-
stitute a “good defence” within the meaning of clause (g) of the
Reciprocal Enforcement of Judgments Act.50 7 Registration of the
judgment was ordered accompanied by the filing of a credit note
for the amounts paid.
Rules of practice and procedure
The Reciprocal Enforcement of Judgments Act provides that:
Rules of court may be made respecting the practice and procedure,
including costs,
in proceedings under this Act and, until rules are
made under this section, the rules of the registering court, including
rules as to costs, mutatis mutandis, apply. 08
Should the rules of the court with respect to the defendant’s right
to security for costs from a non-resident plaintiff be affected by
the Reciprocal Enforcement of Judgments Act? The courts are
divided on this question.
In St. John v. Rath et al.,09 the Alberta Supreme Court held
that, until the Rules of Practice are amended, the Reciprocal
Enforcement of Judgments Act does not deprive the defendant
of his right to security for costs from a non-resident plaintiff.
According to Walsh J. in Fraser v. Wainwright Dome Oil Co. Ltd.
the effect of the Act is “to substitute for the old method of suing
upon the judgment for costs in the jurisdiction in which the judg-
ment debtor lives another and a simpler method of enforcing it”,r10
that is, by registration under the Act. “The suggestion that because
the procedure under which the judgment creditor’s Alberta judg-
ment may become effective in Saskatchewan has been simplified
by this legislation a defendant here should be deprived of the
right which he has long enjoyed and which is given to him by
506 (1959), 27 W.W.R. 678 (Man.).
507 R.S.M., 1954, c. 221, s. 4(g). This case was distinguished in Re Gacs and
Maierovitz (1968), 68 D.L.R. (2d) 345 (B.C.).
508 S.A. 1958, c. 33, s. 8; also see Alberta Rules of Court, Part 55, Rules 730-
736; Saskatchewan Rule 349; British Columbia, Order XLIA.
509 [1926] 3 W.W.R. 726 (Alta).
510 [1927] 1 W.W.R. 523 (Alta), at p. 524.
McGILL LAW JOURNAL
[Vol. 17
our Rules of Court to be secured in the payment of his costs at
the suit of a Saskatchewan plaintiff does not appeal to me as
being sound in principle.” 511
In St. John v. Rath et al the Alberta Supreme Court, in ordering
security for costs, held that it would be inequitable if not unjust
to deprive the defendant, resident in Alberta, of the right to security
for costs given him under the Rules and to give him instead a
right to proceed in the province in which the plaintiff lives, that is,
in Saskatchewan, to collect such costs under the process of the
courts in that province. 512
The fact that the Alberta Reciprocal Enforcement of Judgments
Act applied to the province where the plaintiff was resident (Sas-
katchewan), was not a ground for depriving the Alberta defendant
of the right to security for costs from a non-resident plaintiff.
The Saskatchewan Court of Appeal agreed with the two previous
Alberta cases, and decided in Jorgenson v. Reid et a1513 that the
Reciprocal Enforcement of Judgments Act did not affect the de-
fendant’s right, given him by the Saskatchewan Rules of the Court
to security for costs.
In British Columbia, however, the Supreme Court took a differ-
ent point of view in Henry v. Henry 14 and Whiting v. Imperial Bank
of Canada515 and refused to give an order for security for costs
against a non-resident plaintiff when the plaintiff resided in a juris-
diction to which the Reciprocal Enforcement of Judgments Act
applied. Several years later the British Columbia Court of Appeal,
in Hart v. Arnold and Arnold,1’3 declared that the practice of the
Supreme Court of British Columbia, as exemplified in Henry v.
Henry517 and Whiting v. Imperial Bank of Canada,1′ ought not
to be disturbed.
In that province an application for registration may be made by
originating notice 19 if the judgment is one which under the Act
falls within that class of cases where notice of the application is
required to be given to the judgment debtor and, in all other
cases, may be made ex parte. The application to set aside the
511 Ibid.
512 [1926] 3 W.W.R. 726, at p. 728 (Alta).
513 [1932] 3 W.W.R. 250 (Sask. CA.).
514 [1926] 3 W.W.R. 250 (B.C.).
515 [1935] 3 W.W.R. 255 (B.C.).
516 [1951] 2 W.W.R. 576 (B.C. CA.).
57 [1926] 3 W.W.R. 250 (B.C.).
518 [1935] 3 W.W.R. 255 (B.C.).
519 0 41A, rule 1.
No. 1]
RECOGNITION AND ENFORCEMENT
registration may be made by notice of motion supported by affi-
davit.5 20 The application for registration must be supported by
an affidavit exhibiting a certified copy of the judgment under the
seal of the court where the judgment was obtained and stating
that to the best of the information of the deponent the judgment
creditor is entitled to enforce the judgment; the judgment does not
fall within any of the cases in which it cannot be registered; the
full name trade or business, and usual or last known place of
abode or business of the judgment creditor and judgment debtor
respectively, so far as is known to the deponent and the amount
presently owing on the judgment. 2′
Other provisions
Where an application is made for an ex parte order for regis-
tration, the application shall be accompanied by a certificate, in
the form set out in the Schedule or to the like effect issued from
the original court and under its seal and signed by a judge or
clerk.2 2
The reasonable costs of the registration “are recoverable in
like manner as if they were sums payable under the judgment if
such costs are taxed by the proper officer of the registering court
and his certificate thereof is endorsed on the order for regis-
tration.”5
Another section of the Reciprocal Enforcement of Judgments
Act specifies the judge’s powers:
Subject to the Consolidated Rules of the Supreme Court any of the
powers conferred by this Act on a court may be exercised by a judge
of that court.524
According to the Reciprocal Enforcement of Judgments Acts
in force in Manitoba and Newfoundland, a judgment creditor may
apply, ex parte, to the registering court for a garnishment order,
which the judge of the registering court may make 25 The Manitoba
520 Ibid, rule 4.
521 Ibid., rule 2.
522 SA. 1958, c. 33, ss. 3(3) and (4); See B.C. Order XLIA, rule 2. This
provision does not exist in the Reciprocal Enforcement of Judgments Acts
in force in the provinces of Ontario, Saskatchewan, New Brunswick, the Yukon
and Northwest Territories.
523 SA. 1958, c. 33, s. 6(c).
524 Ibid., s. 9; This provision does not exist in the Reciprocal Enforcement
of Judgments Acts in force in New Brunswick, the Yukon, and Northwest
Territories.
525 R.S.M. 1970, c. J 20, s. 9; S. Nfld. 1960, No 12, s. 9.
McGILL LAW JOURNAL
[Vol. 17
and Newfoundland Reciprocal Enforcement of Judgments Acts
also provide that: “Where the original court is a court in Manitoba
(or Newfoundland), that court has jurisdiction to issue a certificate
for the purposes of registration of a judgment in a reciprocating
state”.526
The Manitoba Reciprocal Enforcement of Judgments Act contains
a provision which is not found in the Reciprocal Enforcement of
Judgments Acts in force in the other provinces, that where a judg-
ment contains registerable and unregisterable provisions, the court
will determine which provisions are registerable and only the
registerable ones may be registered .2 7
During the past century the Canadian common law practice
and legislation has exhibited a steady evolution in the field of
is interesting to note that by admitting
foreign judgments. It
foreign judgments to execution by registration, the Model Act,
adopted in Common Law Canada, follows a practice somewhat
similar to what would seem, from the language of Jenkin and Finch,
to have been the mode of procedure on a foreign sentence in the
ancient forms of the English Court of Admiralty.528
In the Act the emphasis has been laid not so much upon the
standards for the recognition of foreign judgments as upon
the very practical questions connected with their enforcement. An
effort has been made to set a policy of reciprocal registration of
foreign money judgments under appropriate limitations. This is
why the effect of registration of a foreign money judgment, under
the Act, is to render it, for purposes of execution, of the same force
and effect as if it were a judgment of the registering court.
The system of registration of judgments is no doubt superior
to the ordinary procedure, because it can be adopted without
compromising the substantial merits of the common law doctrine
as to the conclusiveness of foreign judgments. But it may necessitate
a reformulation of the common law conception of the foreign judg-
ment as conclusive evidence of a legal obligation.
Basically the Act follows the principles of the common law,
and to a certain extent codifies and simplifies them.
Registration is a very progressive and effective method of en-
forcement of foreign judgments. Yet this effectiveness has been
526R.S.M. 1970, c. J 20, s. 4; S. Nfld. 1960, No. 12, s. 4.
527R.S.M. 1970, c. J 20, s. 3(8); see Model Act s. 3(8), 1962 Proceedings of
Commissioners on Uniformity of Legislation in Canada, p. 108.
528 Westlake, Private Int. Law (7th ed., 1925), at p. 396.
NO. 1]
RECOGNITION AND ENFORCEMENT
umpaired by the fact that from a substantive point of view, the
Act has only codified the common law principles.
The great success of the Act indicates that it was needed, and
that it fulfilled the wishes of Canadian and foreign businessmen.
Taken in conjunction with the already existing methods of enforce-
ment of foreign money judgments, the Acts provide a new variety
of remedy for what is, at best, a complex situation.
The Foreign Judgments Act
In 1933, the Conference of Commissioners on Uniformity of
Legislation in Canada approved a Uniform Foreign Judgments Act
and recommended that it be adopted by all the Canadian provinces52
Today, only Saskatchewan and New Brunswick have adopted this
Act.5 30
The Act is limited to the conditions of recognition of foreign
judgments. It applies to foreign judgments, “whereby a sum of
money is with or without costs made payable or whereby costs
only are made payable”,531 obtained in “any country other than
this province, whether, a kingdom, empire, republic, commonwealth,
state, dominion, province, territory, colony, possession or pro-
tectorate, or a part thereof” 3 2
Reciprocity in treatment is not taken into consideration.
The Foreign Judgments Act not only applies to an action brought
on a foreign judgment, but also to the enforcement of foreign money
judgments under the Reciprocal Enforcement of Judgments Act.
For example, section 3 of the Reciprocal Enforcement of Judgments
Act in New Brunswick5 3 states that:
“No judgment shall be ordered to be registered under this Act
if it is shown to the registering court that:
a) the judgment debtor has a defence under section 5 of the
Foreign Judgments Act… ,34
Section 5 of the New Brunswick Foreign Judgments Act535 lists
520 [1933] Proceedings of Conference of Commissioners on Uniformity of
Legislation in Canada 86. The Act was revised in 1964: [1964] Proceedings 107.
530 The Foreign Judgments Act R.S.S. 1965, c. 95; The Foreign Judgments Act
R.S.N.B. 1952, c. 90, s. 1(d).
532 R.S.S. 1965, c. 95, s. 2(c).
R.S.N.B. 1952, c. 90, s. 1(c).
R.S.N.B. 1952, c. 90.
531 R.S.S. 1965, c. 95, s. 2(d).
533 R.S.N.B. 1952, c. 192.
5341bid., s. 3(a).
535 R.S.N.B. 1952, c. 90.
McGILL LAW JOURNAL
[Vol. 17
all the common law defences available to an action on a foreign
judgment. Generally, the various defences listed are the following
ones: the original court had no jurisdiction; the defendant in the
original action was not duly served and did not appear notwith-
standing that he was carrying on business or was ordinarily resident
in the foreign country or agreed to submit to the jurisdiction of
the court; the judgment was obtained by fraud; the judgment
is not a final judgment, or for a sum certain in money; the judg-
ment is for the payment of a penalty or money due under the
revenue laws of the foreign country; the judgment has been satisfied
or for any other reason is not a subsisting judgment; the judgment
is in respect of a cause of action that for reasons of public policy
or for some similar reason would not have been entertained by
the enforcing courts; or the proceedings in which the judgment
was obtained were contrary to natural justice.53
In the case of Re Reciprocal Enforcement of Judgments Act,
Wigston v. Chowen,537 the defendant claimed that the proceedings
in which the default judgment against him was obtained were
contrary to natural justice238 The court, after examining the evidence,
held that it was the defendant’s fault that, after making an
appearance to the action commenced against him, he failed to
give his solicitor the necessary instructions. The defendant knew
about the action, failed to do something about it, and then moved
out of the jurisdiction without notification of his change of
address. Therefore, the proceedings in which the default judgment
was obtained were not contrary to natural justice.
The Act states when the court of a foreign country has juris-
diction in an action in personam:
“For the purposes of this Act, in an action in personam a court
of a foreign country has jurisdiction in the following cases only:
(a) where the defendant is, at the time of the commencement of
the action, ordinarily resident in that country;
(b) where the defendant, when the judgment is obtained, is carrying
on business in that country and that country is a province or
territory of Canada;
(c) where the defendant has submitted to the jurisdiction of that
court:
536 R.S.S. 1965, c. 95, s. 6.
R.S.N.B. 1952, c. 90, s. 5.
537 (1964), 49 W.W.R. 543 (Sask.).
538The Foreign Judgments Act, R.S.S. 1965, c. 95, s. 6(i).
No. 1]
RECOGNITION AND ENFORCEMENT
(i) by becoming a plaintiff in the action; or
(ii) by voluntarily appearing as a defendant in the action
without protest; or
(iii) by having expressly or
thereto.5 3 9
impliedly agreed
to submit
The word “only” at the beginning of the section clearly prohibits
any attempt to go beyond the provisions of the Act. In another
section, The Act further provides that no court of a foreign country
has jurisdiction:
“(a) in an action involving adjudication upon the title to, or the
right to the possession of, immovable property situate in the
Province; or
(b) in an action for damages for an injury in respect of immovable
property situate in the Province.”5’ 0
Subject to the provisions of the Act, and once it is determined
that the foreign court had jurisdiction, the foreign judgment is
conclusive as to any matter adjudicated upon and shall not be
impeached for any error of fact or law.541
In New Brunswick the Act further provides that:
“No party to any action which may be brought in any Court in this
Province upon or with respect to an obligation which has been adjudicated
on in or by judgment shall be estopped by reason only of such judgment
from availing himself of any right or defence based on either law or
fact which has accrued to such party subsequent to the entering of
such judgment. ‘542
The Foreign Judgments Act gives the court power to grant a
stay of proceedings where it is satisfied that the defendant has
taken or is about to take an appeal or other proceeding in respect
thereof. 43 Finally, the Act expressly preserves the right to bring
an action upon the original cause of action in respect of which
the foreign judgment was obtained. 44
339 R.S.N.B. 1952, c. 90, s. 2.
R.S.S. 1965, c. 95, s. 3.
540 R.S.N.B. 1952, c. 90, s. 3.
R.S.S. 1965, c. 95, s. 4.
541 R.S.N.B. 1952, c. 90, s. 4.
R.S.S. 1965, c. 95, s. 5.
542 R.S.N.B. 1952, c. 90, s. 8.
This provisions is not found in the Foreign Judgments Act of Saskatchewan.
543 R.S.N.B. 1952, c. 90, s. 6.
R.S.S. 1965, c. 95, s. 7.
544R.S.N.B. 1952, c. 90, s. 7.
R.S.S. 1965, c. 95, s. 8.
McGILL LAW JOURNAL
[Vol. 17
Foreign Aircraft Third Party Damage Act
The Foreign Aircraft Third Party Damage Act14
5 implements the
Rome Convention of October 7, 1952, which deals with damage
caused by foreign aircraft to third parties on the surface. Article
20 of the convention contains provisions for the recognition and
enforcement or execution of foreign
in
accordance with the terms of the convention. The first three
paragraphs of Article 20 are concerned with the jurisdiction and
obligations of the contracting states with respect to actions brought
under the convention, while the remaining paragraphs of Article
20 deal with the enforcement of judgments rendered in accordance
with the rules in the first three paragraphs.
judgments
rendered
Application may be made for the enforcement of any final judg-
ment, including a default judgment, obtained in conformity with
the rules of the convention, in any contracting state where the
judgment debtor has his residence or principal place of business,
or where he has sufficient assets to satisfy the judgment. 40 Such
application must be made within five years from the date the
judgment became final. 47
The laws of the forum, in which application for enforcement
is made, will apply to the formalities of enforcement. 548 Reopening
of the merits of the case is prohibited in proceedings for execution. 40
Enforcement or execution of a judgment is not automatic for a
court is entitled to refuse to issue execution on several grounds
listed in the convention, namely, where it is proven that the judg-
ment is in respect of a cause of action which had already formed
the subject of a judgment or an arbitral award which is recognized
as final in the forum, or that the person by whom the application
for execution is made has no right to enforce the judgment.
Execution may also be refused on the ground that a judgment
was given by default and the defendant did not acquire knowledge
of the proceedings in sufficient time to act upon it, or that the
defendant was not given a fair and adequate opportunity to defend
his interests, or that the judgment has been obtained by fraud of
545 S.C. 1955, c. 15, proclaimed in force February 4, 1958, S.O.R. 58-34, Jan. 22,
1958 (p. 102). The Act applies only in respect of damage contemplated by
Article 1 of the Convention caused in the territory of Canada by an aircraft
registered in the territory of a contracting state other than Canada.
546 Article 20, paragraph 4.
047 Ibid., paragraph 12.
04s Ibid., paragraph 4.
549Ibid., paragraph 6.
No. 1]
RECOGNITION AND ENFORCEMENT
any of the parties 5 0 or is contrary to the public policy of the state
where execution is sought 55
If execution of a judgment is refused on any of the last four
grounds mentioned in the preceding paragraph, the claimant is
entitled to bring a new action in the forum where execution was
refused, within one year from the date of refusal. When such
a new action is brought, the previous judgment becomes unen-
forceable and is a defence only to the extent to which it was
satisfied. In addition, the judgment obtained in such a new action
may not allow the total compensation awarded to exceed the limits
of liability provided by the convention.5 52
Conclusion
It is generally agreed that security and simplicity in the relations
among individuals across frontiers, require that in the different
countries of the world the same solution be given to the same legal
problem. This approach would be particularly effective
the
field of foreign judgments. At present, claims based on foreign
judgments exist in great number, and their enforcement, through
appropriate uniform methods, would make international trade much
healthier. However, is it possible both from a theoretical and
practical point of view to attain a true community of justice in
this area of conflict of laws?
in
Although it is doubtful whether a general international agreement
concerning the unification of all the systems of recognition and
enforcement of foreign judgments could ever be secured, due to
the difficulty in
laying down the theoretical foundation of the
unified system, there is no reason why bilateral treaties or other
kinds of arrangements could not be worked out between countries
which have a highly reputable or similar judicial system. This
would at least promote limited uniformity. Of course, whether
such bilateral treaties are desirable in all instances is a question
meriting serious consideration.
Agreements with countries whose judiciary has not attained the
political independance or economic freedom that would enable
it to render decisions entitled to respect abroad should be avoided.
5o Ibid., paragraph 5.
551 Ibid., paragraph 7.
552 Ibid., paragraph 8. The right to bring a new action is subject to a period
of limitation of one year from the date on which the claimant has received
notification of the refusal to execute the judgment.
McGILL LAW JOURNAL
[Vol. 17
A choice must be made among the different countries of the
world, based on the certainty that their courts adhere to the common
standards of natural justice and due process of the Western world,
if Canadian courts are to execute foreign judgments against local
citizens or residents.
Actually the extent to which reliance ought to be given to the
judgments of foreign countries must ultimately rest upon the views
of legal public opinion in the nation involved. This is particularly
true in a federal state like Canada, due to the fact that within the
country’s legal structure different conflicting ways of enforcing
foreign judgments exist side by side. Internal unification through
the process of codification by the different legal units of the federal
state is the first step to be taken before successful results can be
achieved on the international level. This has now largely been
achieved. The conclusion of a bilateral agreement by a federal state
ought not to be complicated by constitutional problems.
In order to reach a practical solution by way of international
convention or by Model Act, it will be necessary for the countries
involved to assent to a number of common legal principles, and
to be prepared to modify their substantive and procedural law.
The most important object of any system of execution of foreign
judgments is to insure that the enforcing court is not a court of
appeal from the foreign judgment. In other words, the foreign
judgment must always be conclusive. This is also a question of
confidence. If the nations of the world do not possess complete
confidence in one another’s legal systems, they will be reluctant
to adopt a method which may render their courts mechanical agents
for enforcing uncontrolled decisions of foreign courts. This does not
mean that foreign judgments should not be subjected to a certain
amount of scrutiny by the enforcing court.
A foreign judgment is the end product of the application of
the domestic legal order. It is a fact which cannot be ignored, and
should at least receive the same consideration that is given to
foreign law. Yet there is a common agreement that a certain amount
of control must be exercised over the recognition and enforcement
of foreign money judgments, in order to protect the domestic legal
order.
Although, on the national and international levels, the drafting
of a statute or uniform law must be made in the light of political,
economic and social factors so as to give weight to dynamic rather
than static or doctrinal factors, some common principles should
be stated as constituting the foundations of a system of recognition
No. 1]
RECOGNITION AND ENFORCEMENT
and enforcement of foreign money judgments. This would be
relatively simple, since in Canada the general policy is that the
recognition and enforcement of foreign
judgments should be
prompt, inexpensive and effective. These requisites could constitute
the foundation of any world wide system of recognition and
enforcement of foreign judgments. Embodied in the law, they
would do much to promote the development of international com-
merce by insuring security of transactions, regularity in the appli-
cation of the law, and uniformity of result.
Equitable principles, as well as economic considerations, must
govern this field of private international law since the law is not
an end in itself, but the instrument of a social and economic policy.
Although the enforcement of a foreign money judgment appears
to be the most obvious case in which effect should be given to a
foreign claim according to the appropriate foreign law, this has
never been fully recognized. The solution, however, is well within
reach, since it is sufficient to emphasize the character of a foreign
judgment as a judgment, “and it will logically appear by analogy
to the domestic judgment, not merely that the foreign judgment
is conclusive, assuming a duly constituted court with jurisdiction
over the cause and the parties, but also that under appropriate
provision to secure the judgment debtor against double execution,
the foreign judgment should be registrable for execution upon
transcript filed.”553 Canadian courts must not forget that they are
dealing with rights that have already been adjudicated. They must
have confidence in the judicial system of foreign nations.
With the improvement of the calibre of the judiciary throughout
the world, and the proclamation of the Universal Declaration of
Human Rights by the United Nations, and the adherence, by many
states, to the Convention on Human Rights, there is no doubt that
a day will come when the rights of creditors will be adequately
enforced in every country of the world without fear of injustice. A
foreign judgment may then be given full credit in another country
and be considered there as a domestic judgment with or without
registration.
In order to solve the existing conflict of interests between the
judgment debtor, who wants to delay execution, and the judgment
creditor, who wants a quick execution, a procedure must be found
which provides for speedy enforcement, without endangering the
rights of the judgment debtor. Some judicial control must be
exercised over the execution of foreign money judgments but it
553 Yntema, op. cit., p. 1166.
McGILL LAW JOURNAL
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need not be too stringent. A slight improvement of the traditional
procedures or the extension of an improved system of registration
is the most that is required to insure the security of international
transactions and make possible actual uniformity of solutions.
The Hague Convention and Protocol on the Recognition and
Enforcement of Foreign Judgments in Civil and Commercial Matters
seems to have achieved this aim and it is hoped that it will be
adopted in Canada.
The convention applies to all decisions rendered in civil and
commercial matters by the courts of a contracting state, irrespective
of the name given by that state to the proceedings giving rise
to the decision or to the decision itselfY5 4 The convention does
not apply to decisions the main object of which is to determine
the status or capacity of persons, questions of family law including
personal or financial rights and obligations between family mem-
bers, maintenance obligations, the existence or constitution of legal
persons and their officers’ powers, questions of successions,
questions of social security, questions of bankruptcy or compo-
sitions or analogous proceedings, questions relating to damage or
injury in nuclear matters, and decisions for the payment of any
customs duty, tax, or penalty.?5 5 Nor does the convention apply
to decisions ordering provisional or protective measures or rendered
by administrative tribunals.””
The parties’ nationality does not affect the application of the
convention. 55 7
Conditions of recognition and enforcement
A decision rendered in one of the contracting states is entitled
to recognition and enforcement in another contracting state if it
was enforceable in the state of origin itself, if it was given by a
court having jurisdiction within the meaning of the convention,
and if it is no longer subject to review in the state of origin.158
According to Article 10, the jurisdiction of the court of the state
of origin is recognized in the following cases:
(1) if the defendant had, at the time when the proceedings were instituted,
his habitual residence in the State of origin, or, if the defendant
if not a natural person, its seat, its place of incorporation or its
principal place of business in that State;
554 Article 2.
555 Article 1.
556 Article 2.
557 Article 3.
558 Article 4.
No. 11
RECOGNITION AND ENFORCEMENT
(2) if the defendant had, in the State of origin, at the time when the
industrial or other
proceedings were
business establishment, or a branch office, and was cited there in
proceedings arising from business transacted by such establishment
or branch office;
instituted, a commercial,
(3) if the action had as its object the determination of an issue relating
to immovable property situated in the State of origin;
(4) in the case of injuries to the person or damage to tangible property,
if the facts which occasioned the damage occurred in the territory
of the State of origin, and if the author of the injury or damage
was present in that territory at the time when those facts occurred;
(5) if, by a written agreement or by an oral agreement confirmed in
writing within a reasonable time, the parties agreed to submit to
the jurisdiction of the court of origin disputes which have arisen
or which may arise in respect of a specific legal relationship, unless
the law of the State addressed would not permit such an agreement
because of the subject-matter of the dispute;
(6) if
the defendant has argued the merits without challenging the
jurisdiction of the court or making reservations thereon; nevertheless
such jurisdiction shall not be recognized if the defendant has argued
the merits in order to resist the seizure of property or to obtain
its release, or if the recognition of this jurisdiction would be contrary
to the law of the State addressed because of the subject-matter
of the dispute;
(7) if the person against whom recognition or enforcement is sought
was the plaintiff in the proceedings in the court of origin and was
unsuccessful in those proceedings, unless the recognition of this
jurisdiction would be contrary to the law of the State addressed
because of the subject-matter of the dispute. 59
The court of the state of origin is considered to have jurisdiction
to try a counterclaim if that court would have had jurisdiction to
try the action as a principal claim under the first six provisions
of Article 10, or if the court did have jurisdiction under Article 10
to try the principal claim and the counterclaim arose out of the
contract or facts on which the principal claim was based.56 Unless
the decision was rendered by default, the authority addressed shall
be bound by the findings of fact on which the court of the state
of origin based its jurisdiction.r61
The jurisdiction of the court of the State of origin need not
be recognized by the authority addressed in the following cases:
(1) if the law of the State addressed confers upon its courts exclusive
jurisdiction, either by reason of the subject-matter of the action
or by virtue of an agreement between the parties as to the determi-
nation of the claim which gave rise to the foreign decision;
559 Article 10.
560 Article 11.
561 Article 9.
McGILL LAW JOURNAL
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(2) if the law of the State addressed recognizes a different exclusive
jurisdiction by reason of the subject-matter of the action, or if the
authority addressed considers itself bound to recognize such an
exclusive jurisdiction by reason of an agreement between the parties;
(3) if the authority addressed considers itself bound to recognize an
agreement by which exclusive jurisdiction is conferred upon arbi-
trators. 62
A decision rendered by default shall not be recognized or enforced
unless the defaulting party received notice of the institution of the
proceedings in accordance with the law of the State of origin in
sufficient time to enable him to defend the proceedings.r0 3 In
addition, recognition or enforcement may be refused if the decision
was obtained by fraud, in the procedural sense; if recognition or
enforcement would be contrary to the public policy of the state
addressed; if the decision was the result of proceedings contrary
to the requirements of due process of law; if, in the circumstances,
either party did not have an opportunity fairly to present his case;
or if proceedings between the same parties, based on the same
facts and having the same purpose, were first to be instituted in
and are pending before a court of the state addressed or have
resulted in a decision by a court of the state addressed or by a
court of another state which would be recognized by the state
addressed.5 ”
Article 7 states that recognition or enforcement may not be
refused for the sole reason that the c6urt of the state of origin
applied a law other than that which would have been applicable
according to the rules of private international law of the state
addressed. However recognition may be refused if the state of
origin had to decide a question on matters excluded by the con-
vention by the first four subparagraphs of the second paragraph of
Article 165 and reached a result different from that which would
562 Article 12.
563 Article 6.
564 Article 5.
565 According to the first four subparagraphs of the second paragraph of
Article 1, the convention shall not apply to decisions the main object of which
is to determine –
(1) the status or capacity of persons or questions of family law, including
personal or financial rights and obligations between parents and
children or between spouses;
(2) the existence or constitution of legal persons or the powers of their
(3) maintenance obligations, so far as not included in subparagraph (1)
officers;
of this article;
(4) questions of succession.
No. ii
RECOGNITION AND ENFORCEMENT
have followed had the rules of private international law of the
state addressed been applied to that question.
Article 8 of the convention prohibits the review of the merits of
a decision rendered by the court of origin, unless review is required
by other Articles of the convention.
Recognition and enforcement procedures
The law of the state addressed governs procedure so far as the
convention does not provide otherwise.”66 The person seeking recog-
nition or applying for enforcement must furnish a complete and
authenticated copy of the decision, and in the case of a default
judgment, the originals or certified true copies of the documents
establishing that the summons was duly served on the defaulting
party.
In addition, he must furnish all the documents establishing
that the decision is final in the state of origin and where appropriate
that it is enforceable there. Unless not required, certified trans-
lations of the documents shall be provided by the party seeking
recognition567
No legalisation or other like formality may be required. Where
a decision contains provisions capable of being dissociated, any
68
one or more of these may be separately recognized or enforced .
An award or decision for costs or expenses, even if it does not
proceed from a court, may be recognized or enforced provided
the convention is applicable to the decision on the merits, and
provided the decision derives from a decision which may be
recognized or enforced under the convention, and that the decision
relating to costs could have been subject to judicial review. 69 A
judgment for costs given in connection with the granting or refusal
of recognition or enforcement of a decision may be enforced under
the convention only if the applicant in the proceedings for recog-
nition or enforcement relied on the convention. 70
Settlements made in court in the course of a pending proceeding
which are enforceable in the state of origin shall be enforceable
in the state addressed.5 71 Where legal aid was granted in the state
560 Article 14.
567 Article 13.
568 Article 14.
5069 Article 15.
570 Article 16.
571 Article 19.
McGILL LAW JOURNAL
[Vol. 17
of origin, the state addressed shall also extend such aid
in
proceedings for recognition or enforcement of a foreign decision.r12
Where the applicant has his habitual residence in, or in the
case of a non-natural person has a place of business in a state
which has concluded a supplementary agreement173 with the state
addressed, that state shall not demand a security, bond or deposit
to guarantee the payment of judicial costs.5 74
Supplementary Agreements
Unless states have concluded supplementary agreements, de-
cisions rendered in one contracting state shall not be recognized
or enforced in another contracting state under the provisions of
the convention. 57 Article 23 of the convention lists the various
provisions which may be agreed upon by the contracting states
in their supplementary agreements. For example, the contracting
states may clarify the meaning of various expressions such as “civil
and commercial matters”, “habitual residence” or “law” in federal
states; they may specify the type of decisions to which the con-
vention will apply; they may regulate the procedure for obtaining
recognition or enforcement; they may define the bases of juris-
diction; they may also specify a limitation period, or fix the rate
of interest payable from the date of the judgment in the state of
origin.
Where two states have concluded a supplementary agreement,
the judicial authorities of either state may dismiss or stay an
action brought before them when other proceedings between the
same parties, based on the same facts and having the same purpose
are pending in a court of another state, and these proceedings
may result in a decision which the state in which the first mentioned
action was brought would be bound to recognize under the pro-
visions of the convention 76
Supplementary Protocol
The Protocol applies to all foreign decisions, regardless of their
state of origin, rendered on matters to which the Convention
572 Article 18.
573 Supplementary agreements shall be discussed in the following para-
graphs.
574 Article 17.
575 Article 21.
7 Article 30. The authorities of these states may nevertheless order provi-
sional or protective measures regardless of proceedings elsewhere.
No. 1]
RECOGNITION AND ENFORCEMENT
extends and directed against a person domiciled or resident in a
Contracting state.577
Recognition and enforcement of such decisions shall be refused
where they were based only on one or more of the following grounds
of jurisdiction: 7s the presence of the defendant’s property in the
state of origin or the seizure by the plaintiff of property situated
there, unless the action is brought to assert proprietary or possessory
rights in that property or arises from another issue relating to
such property, or the property constitutes a security for a debt
which is the subject-matter of the action; the plaintiff’s nationality;
the domicile or habitual or ordinary residence of the plaintiff in
the state of origin unless permitted by way of exception made on
account of the subject-matter of a class of contracts; the fact that
the defendant carried on business within the state of origin, unless
the action arises from that business; service of writ upon the
defendant within the state of origin during his temporary presence
there; a unilateral specification of the forum by the plaintiff,
particularly in an invoice.r79
Recognition and enforcement need not be refused where the
jurisdiction of the court of the state of origin could also have been
based upon another ground of jurisdiction which as between the
state of origin and the state of recognition is sufficient to justify
recognition and enforcement.8
V. Reciprocal Enforcement of Maintenance Orders
Introduction
At common law, a final judgment or order for maintenance or
alimony rendered or made by a competent foreign court is en-
in all the Canadian provinces.5 8 ‘ However as noted
forceable
previously, the procedure for the enforcement of foreign judgments
is lengthy and often costly thus causing a great deal of hardship
577 Article 1 of Protocol.
678 Article 2 of Protocol.
579 Article 4. of Protocol. It is worth mentioning that Article 5 of the Pro-
tocol states that the domicile or habitual residence of a legal person is where
it has its seat, its place of incorporation or its principal place of business.
580 Article 2 of Protocol.
581 See e.g. Swaizie v. Swaizie (1900), 31 O.R. 324; Robertson v. Robertson
(1908), 16 O.L.R. 170 (arrears of alimony); Wood v. Wood (1916), 37 O.L.R. 428,
31 D.L.R. 765 (C.A.) (arrears of alimony); Burchell v. Burchell (1926), 58 O.L.R.
515, [1926] 2 D.L.R. 595; Meyers v. Meyers, [1935] O.W.N. 547 (arrears of
alimony); Hadden v. Hadden (1899), 6 B.C.R. 340 (C.A.); Burpee v. Burpee,
[1929] 3 D.L.R. 18, [1929] 2 W.W.R. 128, 41 B.C.R. 201.
McGILL LAW JOURNAL
[Vol. 17
to deserted wives or abandoned children. Furthermore, at common
law, judgments that may be modified by the courts that rendered
them are not final and cannot be enforced 8 2
These difficulties prompted the Commissioners on Uniformity
of Legislation in Canada to prepare a model Uniform Reciprocal
Enforcement of Maintenance Orders Act which was approved
in 1946,3 revised in 1953,r s4 1956585 and 1958586 and amended in
1963 and 1970.11
The model Uniform Act which has been adopted with slight
modifications by all common law provinces and territories,;
is
designed to facilitate the enforcement of the obligations of parents
and spouses when they are resident in one state, province or
territory and their dependants are resident in another.
Several situations are contemplated by the Act. First it provides
for the registration of maintenance orders made against persons
by courts in reciprocating states. 8 9 Secondly copies of maintenance
orders made at the request of local residents against persons
resident in reciprocating states must be transmitted to the proper
authorities of these reciprocating states.59 0 Thirdly provisional orders
may also be made against non-resident persons for confirmation
by the competent courts in reciprocating states. 9 This is designed
to enable a deserted wife, resident in a state or province the
courts of which have no jurisdiction over the husband who has
deserted her and is residing in a reciprocating state or province,
to initiate proceedings in the province where she is and thus to
582 See supra, s. 2 and e.g. McIntosh v. McIntosh, [1942] O.R. 574, [1942]
O.W.N. 509, [1942] 4 D.L.R. 70; Ashley v. Gladden, [1954] 4 D.L.R. 848, [1954]
O.W.N. 255, aff’d 558; Smith v. Smith, [1923] 2 W.W.R. 389, 17 Sask. L.R. 203,
[1923] 2 D.L.R. 896 (CA.); Smith v. Smith (1954), 13 W.W.R. (N.S.) 207, [1955]
1 D.L.R. (2d) 229 (B.C.).
5 1946 Proceedings 69.
5 1953 Proceedings 96.
585 1956 Proceedings 89.
586 1958 Proceedings 97.
6 1963 Proceedings 127; 1970 Proceedings 340.
58 8 SA., 1958, c. 42, as amended 1960, c. 88; R.S.B.C., 1960, c. 332, as amended
1961, c. 59, s. 27, 1968, c. 12, s. 29; R.S.M., 1970, c. M20; R.S.N.B., 1952, c. 193,
as amended 1952, c. 25, 1954, c. 72, 1970, c. 43; R.S. Nfid., 1952, c. 127, as amended
1961, no. 34; R.S.N.S., 1967, c. 173, as amended 1968, c. 37, 1970, c. 50; R.O.N.W.T.,
1956, c. 63, as amended 1963, c. 17; R.S.O., 1960, c. 346, as amended 1961-62, c.
123, 1964, c. 100, 1967, c. 86; R.S.P.E.I., 1951, c. 139; S.S. 1968, c. 59; R.O.Y.T.,
1958, c 96; In Quebec, see R.S.Q., 1964, c. 23.
5s89 Uniform Act, s. 3.
5so Ibid., s. 4.
591 Ibid., s. 5.
No. 1]
RECOGNITION AND ENFORCEMENT
avoid the necessity of travelling to the state or province where the
husband resides.
orders made in reciprocating states 92
Finally the Act provides for the confirmation of maintenance
L Analysis of the Uniform Act
a) Definitions
A maintenance order is “an order, judgment, decree or other
adjudication of a court that orders or directs, or contains provisions
that order or direct, the periodical payment of money as alimony,
or maintenance, or support for a dependent of that person against
whom the order, judgment, decree or adjudication was made” 93
In Re Fleming and Fleming94 the Manitoba Court of Queen’s
Bench held that the definition of maintenance order
in the
Maintenance Orders (Facilities for Enforcement) Act595 was con-
fined to orders for the payment of money only and excluded
orders which give other relief. In other words, an alimony decree
granted ancillary to a divorce decree is not a maintenance order
within the meaning of the Act.5 96
A judgment or decree for divorce containing maintenance pro-
visions could not be registered under this Manitoba Act nor under
the Manitoba Reciprocal Enforcement of Judgments Act59 ‘ nor
592 Ibid., s. 6.
593 S. 2(d) Several provinces expressly exclude an order of affiliation from
this definition: New Brunswick, Newfoundland, Prince Edward Island, Yukon,
North West Territories. In British Columbia, it was held that the definition
of “maintenance order” is wide enough to cover an order made for the support
of an illegitimate child: Re Todesco v. Zabkar (1965), 53 W.W.R. 589.
(1959), 19 D.L.R. (2d) 417, (1959), 28 W.W.R. (N.S.) 241.
5
95 R.S.M., 1954, c. 151, s. 2(e), based on the 1946 Uniform Act.
596 See also Wilson v. Wilson (1966), 58 D.L.R. (2d) 191 (Sask.).
597R.S.M., 1954, c. 221. As to the registration of foreign decrees for divorce
and maintenance under the British Columbia Reciprocal Enforcement of Judg-
ments Act, R.S.B.C., 1948, c. 286, see in re Wilson (1952), 7 W.W.R. (N.S.) 524
(B.C.); Jackson v. Jackson, [1950] 1 W.W.R. 900 (B.C.); Mackowey v. Mackowey
(1954), 14 W.W.R. 190 (B.C.). Now see R.S.B.C., 1960, c. 331, s. 2(1)(a) which
excludes “an order for the periodical payment of money as alimony or as
maintenance for a wife or former wife or reputed wife or a child or any
other dependent of the person against whom the order was made”. As to
the enforcement of such orders under the Ontario Reciprocal Enforcement
of Judgments Act, R.S.O., 1937, c. 124 see Lupton v. Lupton, [1946] O.W.N. 326,
[1946] 2 D.L.R. 286. Now see R.S.O., 1960, c. 345, as amended. Thus it would
seem that in some provinces, maintenance orders may be registered under
either statute while in other provinces this is not possible.
McGILL LAW JOURNAL
[Vol. 17
could a part of any such judgment or decree be registered there-
under. Both statutes were held to be mutually exclusive.
In Re Paslowski v. Paslowski5 98 the Manitoba Court of Queen’s
Bench also held that orders that could be varied by the court
which made them were not final and thus were unenforceable in
this province.
On principle, there appears to be no valid reason why a directive
to pay alimony or maintenance made by a court of divorce should
not be registered under the Act while such a directive in the form
of an order could be so registered. Furthermore, why should
registration be exclusively limited to an order or decree in a divorce
court or other court directing periodical payments of maintenance
only? Thus, in 1961, the legislature of the province of Manitoba
which by then had adopted the 1958 revised model Uniform Act,
amended it by adding some provisions to take care of the difficulties
that arose in Paslowski and Fleming. Today “a maintenance order,
or that part of a judgment that relates solely to a maintenance
order, does not fail to be a maintenance order within the meaning
of clause (d) of subsection (1) solely by reason of the fact that
the amount payable thereunder may be varied from time to time
by the court in the reciprocating state by which the order was
made or the judgment given”.59a
The model Uniform Act was also amended in 1963 along the
same lines 6 and now makes the definition of “maintenance order”
explicit with reference to alimony and maintenance orders rendered
incidental or ancillary to divorce and judicial separation decrees.
Also in Manitoba, where, in proceedings to enforce against any
person a maintenance order registered under the Act or at any
598 (1957), 22 W.W.R. 584, 65 Man. R. 206, 11 D.L.R. (2d) 180. The court also
held that the definition of “judgment” contained in the Reciprocal Enforce-
ment of Judgments Act, supra, did not include within its meanings a mainte-
nance order issued incidental to a decree of judicial separation.
599 See R.S.M., 1970, c. M20, s. 2(2) and 1961 Proceedings 58. In Ontario, a
divorce judgment granted by a Saskatchewan court was held to fall within
the definition of maintenance order: Omeijanow v. Omeijanow, [19581 O.W.N.
13. See also Summers v. Summers (1958), 13 D.L.R. (2d) 454 (Ont.) where the
court took it for granted that a maintenance order issued as part of a divorce
proceedings in England was within the meaning of the definition of “mainte-
nance order” in the Ontario Act. Now see s. 5A Ontario Act.
600 S. 2A, 1963 Proceedings 127. See also s. 6A (1) added in 1963: “If a main-
tenance order contains provisions with respect to matters other than periodi-
cal payments of money as alimony, maintenance, or support, the order may
be registered or confirmed under this Act in respect of those provisions thereof
that order or direct such periodical payment of money, but may not be so
registered or confirmed in respect of any other provisions therein contained.
No. 1]
RECOGNITION AND ENFORCEMENT
other time, it is shown to the court in which the order is registered,
or to which a certified copy thereof is sent for registration, that
the order has been varied by the court that made it, such order
will be deemed to be varied accordingly and may be enforced only
in accordance with the variation. 60 1 This provision does not apply
to a provisional order that may be varied by the confirming court 02
A “‘dependent’ means a person that a person against whom a
maintenance order is sought or has been made is liable to maintain
according to the law in force in the state where the maintenance
is sought or was made”.60
It has been held that where a provisional order for maintenance
is made in a reciprocating state, it does not become a “maintenance
order” in Saskatchewan until it has been confirmed by the court
having jurisdiction over the person liable to pay. This court must
apply its own law in considering whether the provisional order
ought to be confirmed. Thus in Re Morrissey and Morrissey,64 the
father’s liability to support his daughter was determined not
according to the law of British Columbia where she resided but
according to the law of Saskatchewan where her father had his
residence. The Saskatchewan Court was also of the opinion that
the definition of “maintenance order” applies only where the
order has been made by a court that has jurisdiction over the
person liable to maintain the dependent according to the law in
force in the state where such an order is made. 5
The Uniform Act only applies to states which the Lieutenant-
Governor in Council declares to be reciprocating states, if he is
satisfied that reciprocal provisions will be made by them for the
enforcement
therein of maintenance orders made within the
province.60 6 Whereas the New Brunswick Act limits “reciprocating
states” to members of “Her Majesty’s Dominions and the Republic
of Ireland”, 7 other provinces such as Ontario have declared various
foreign states as “reciprocating states”. 08
601 Man., s. 2(3). Uniform Act, s. 6A (2), added in 1963.
602-Man., s. 2(4). Uniform Act, s. 6A (3), added in 1963.
603 S. 2(c). See Ross v. Polak, [1971] 2 W.W.R. 241 (Alta. CA.).
604 (1969), 70 W.W.R. 140, 7 D.L.R. (3rd) 174 (Sask. D.C.). Contra: Ross v.
Polak, ibid.
605 Ibid.
600Uniform Act, ss. 2(e) and 15(1). S. 15(2) also gives the Lieutenant-
Governor in Council the power to revoke such a declaration. For a list of
reciprocating states see the regulations in each of the provinces.
607 S. 1(g), R.S.N.B., 1952, c. 193, as amended.
608 E.g. Michigan, Union of South Africa.
McGILL LAW JOURNAL
[Vol. 17
In A.G. for Ontario v. Scott,09 the constitutional validity of such
reciprocal legislation under section 92(13) and (16) of the B.N.A.
Act was upheld by the Supreme Court of Canada.
It should also be pointed out that the Uniform Act does not
change the ordinary rules of conflict of laws as to the recognition
of foreign maintenance orders; it simply facilitates their enforce-
ment.610
b) Enforcement of Maintenance Orders Made in Reciprocating
States
This part of the Act deals with the registration and enforcement
of a final order made elsewhere by a court then having jurisdiction
over the person against whom the order was made. There is only
one order which draws its substantive effectiveness from the law
of the state where it was made. Thus, where a maintenance order
has been made against a person by a court in a reciprocating state
and a certified copy of the order has been transmitted by the
proper officer of that state to the Attorney General of the enforcing
state, the Attorney General must send a certified copy of the order
for registration to the proper court, where on receipt thereof the
order will be registered. 11
In British Columbia it was held that the Attorney General is
not restricted by section 3(1) to registering an order made outside
the province in a court of equivalent jurisdiction to the court
which made it, provided the British Columbia court has statutory
authority to make such maintenance order. For instance, a foreign
order made ancillary to a decree in a matrimonial cause could not
be enforced in British Columbia in the Family and Children’s court
as it has no original jurisdiction in matrimonial causes21 This view
was followed by the Supreme Court of Alberta 13 where Riley J.
in Chambers held that in reciprocal enforcement proceedings, a
family court could only make an order which it could itself have
made in the exercise of its own original jurisdiction. His decision
600 [1956] S.C.R. 137, 114 C.C.C. 224, [1956] 1 D.L.R. (2d) 433, reversing [1954]
O.R. 676, 109 C.C.C. 235 [1954] 4 D.L.R. (2d) 546 which reversed [1954] O.R. 246,
108 C.C.C. 393, [1954] 4 D.L.R. (2d) 465.
610 Re Paslowski v. Paslowski (1957), 22 W.W.R. 584, 65 Man. R. 206; See also
Can. Credit Men’s Trust Association v. Ryan, [1929] 3 W.W.R. 403, [1930] 1
D.L.R. 280 (Alta), which involved the Reciprocal Enforcement of Judgments
Act, SA., 1925, c. 5; Except perhaps for ss. 2A and 3A (3) of the Uniform Act.
611S. 3(1).
612 Re Todesco v. Zabkar (1965), 53 W.W.R. 589 (B.C.).
613 Strauch v. Strauch (1966), 56 W.W.R. 242, 57 D.L.R. (2d) 233 (Alta).
No. 1]
RECOGNITION AND ENFORCEMENT
was reversed by the Appellate Division. 14 The Ontario decree of
divorce could be registered in Alberta, not because it was a decree
in divorce proceedings but because it contained an order for main-
tenance so that upon registration, all the provisions relating to
maintenance become effective under section 3(2) and all proceed-
ings may be taken as if that part of the decree had been originally
obtained in the family court. Section 3(2) provides for the conse-
quences of registration and does not lay down as a condition pre-
cedent to registration that the family court must have had original
jurisdiction to make a similar order.
Section 3(2) provides that the order once registered has from
the date of its registration, the same force and effect, and subject
to the Act, all proceedings may be taken thereon, as if it had been
an order originally obtained in the registering court.
In Short v. Short 61 section 3(2) of the Alberta Act 116 was given
a twofold effect. Mr. Justice Kirby held that a maintenance order
of a court in a reciprocating state against a husband who had
submitted to its jurisdiction was enforceable in Alberta upon regis-
tration despite the order’s lack of finality and conclusiveness owing
to the court which issued the order having power to rescind and
vary it 61 7 and that the Alberta court has the same powers with
respect to such a registered judgment as it would have had if it
had made the order itself. Thus it may vary the order.618 On the other
hand in Pasowysty v. Foreman”1
it was held by the British Co-
lumbia Supreme Court that where an order for the payment of
maintenance is made in a reciprocating state and registered pur-
suant to section 3 of the Act, the jurisdiction of the Family and
Children’s court in which the order is registered in British Co-
lumbia is limited to enforcing the order and there is no power
to vary or discharge it. 620 In coming to this conclusion, the court
pointed out that if the legislature of British Columbia saw fit to
set out in specific terms the power to vary an order made under
section 6, it would have done so where the order to be varied is
one made under section 3.
614 (1967), 60 D.L.R. (2d) 538, 58 W.W.R. 683.
615 (1963), 40 W.W.R. 592.
016Supra, footnote 588.
617 Now see s. 2A Uniform Act, supra.
618 See also Fleming v. Fleming (1959), 28 W.W.R. 241, at p. 253 (Man.).
619 (1969), 69 W.W.R. 99, 5 D.L.R. (3d) 427.
620 See also Lupton v. Lupton, [1946] O.W.N. 326, [1946] 2 D.L.R. 286 under
the Ontario Reciprocal Enforcement of Judgments Act, R.S.O., 1937, c. 124,
s. 4(b).
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[Vol. 17
In 1968, in British Columbia, section 3(2) of the Act was
amended 621 to the effect that the court in which the order is
registered has the power to enforce it notwithstanding that it is
an order in proceedings in which the court has no original juris-
diction or it is an order which the court has no power to make
in the exercise of its original jurisdiction 22 The reason for the
enactment of this amendment was in response to some decisions
of the British Columbia courts in which doubt was cast upon the
jurisdiction of the court under the Reciprocal Enforcement of
Maintenance Orders Act to register an order which contained
matter over which the court had no jurisdiction 623 or the enforce-
ment of such an order where the enforcing court would have
no original jurisdiction to make the order. 24
Where the sums of money made payable by the order are
expressed in a foreign currency, the order will not be registered
until the enforcing court has determined the equivalent of these
sums in the currency of Canada on the basis of the rate of exchange
prevailing at the date of the order of the court in the reciprocating
state.625
621 S.B.C., 1968, c. 12, s. 29(2).
622See also s. 1(a), S.B.C., 1968, c. 12, s. 29(1) adopted by the Conference in
1970. Uniform Act, ss. 3(1)(1.1) and 3(2)(2.1), 1970 Proceedings 340.
223 E.g. a divorce decree providing for maintenance.
6 24 Re Todesco v. Zabcar (1965), 53 W.W.R. 589 (B.C.); Overton v. Overton
(1966), 56 W.W.R. 447 (B.C.); Re Schmidt (1967), 61 W.W.R. 124, 64 D.L.R. (2d)
90 (B.C.); Cf. Re Broatch and Broatch (1968), 67 D.L.R. (2d) 333, 63 W.W.R.
467 (B.C.) where it was held that while the judges of the family court did
not possess jurisdiction to enforce a maintenance order ancillary to a decree
in a matrimonial cause made in British Columbia, there was such jurisdiction
when the maintenance order ancillary to a decree in a matrimonial cause
was made by a court in a reciprocating state. The court applied Strauch v.
Strauch (1967), 60 D.L.R. (2d) 538, 58 W.W.R. 683. See also MacDougall, The
Enforcement of Maintenance Orders in British Columbia (1968), 26 The Ad-
vocate 43. See also s. 15 of the Divorce Act, S.C. 1968, c. 24 which provides
for the registration of maintenance orders granted as a corollary relief to
a divorce decree under section 10 or 11 of the Act:
“An order made under section 10 or 11 [corollary relief: maintenance]
by any court may be registered in any other superior court in Canada and
may be enforced in like manner as an order of that superior court or in such
other manner as is provided for by any rules of court or regulations made
under section 19.”
625 S. 3(3). See Re Ducharme v. Ducharme (1963), 39 D.L.R. (2d) 1, [1963]
2 O.R. 204 (CA.). Registration is a nullity where there is non compliance with
the imperative requirements of this subsection although it would seem that
such non compliance might be cured by re-registration.
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RECOGNITION AND ENFORCEMENT
According to section 3A added in 1963, once the order has been
registered, the person against whom it was made may, within one
month after he has had notice of registration or within such
further time as the justice of the case requires, apply to the
registering court to have the registration set aside. 26
On such application, the court must set aside the registration
of the maintenance order if the court in the reciprocating state
acted without jurisdiction over the person against whom the order
was made under the conflict of laws rules of the forum or the
order was obtained by fraud. 2 7 If it is shown to the court that
an appeal is pending in the original court, the enforcing court may
make such order as it sees fit. 28 Section 3A clarifies the inter-
pretation to be given to section 3. It was adopted to overcome
the result reached in Coopey v. Coopey 629 where the court held
that section 3 was mandatory and did not give consideration to
whether the English order sought to be registered was a nullity
because of lack of jurisdiction in the English court.
Under the conflict of law rules of Alberta, the English court
lacked jurisdiction over the defendant because he was not resident
or present in England at any material time, nor did he submit to
the jurisdiction of the English court. Section 3, as interpreted in
that case, would enable a person to register a maintenance order
which is not “provisional only” ex parte and as of right, without
any confirmation, and without the party against whom it is made
having any right of appeal, or any right to apply to have it set
aside. Such a situation is not a proper one; it could cause great
injustice. Under the authority of Summers v. Summers 630 the wife
would be entitled to have a divorce court order registered as of
right in Ontario. In that case, the Ontario High Court upheld regis-
tration of a maintenance order that had been issued in the High
Court of Justice in England in a case where at the time the action
was begun there was no jurisdiction in personam over the de-
fendant. The English order was made as part of divorce proceedings
taken by a wife against her husband. The Ontario court held that
the order was not a judgment in personam, but was ancillary to
the divorce decree, and since there was divorce jurisdiction over
the husband in England according to English law, there was also
jurisdiction to issue the ancillary order. The court distinguished
626 1963 Proceedings, p. 127, s. 3A (1) and (2).
627 S. 3A (3), Uniform Act.
628 S. 3A (4), Uniform Act.
629 (1961), 36 W.W.R. 332 (Alta).
McGILL LAW JOURNAL
[Vol. 17
Re Kenny 631 where the order which was refused registration in
Ontario had been issued in British Columbia and there was no
basis of jurisdiction in personam in the conflict of laws sense in
British Columbia when the action was commenced there. In Sum-
mers v. Summers the court recognized the statutory divorce juris-
diction of the English court eventhough the husband was not domi-
ciled in England when the divorce action was commenced there
against him. Thus under Canadian conflict of laws rules prevailing
at that time the English court did not possess international juris-
diction.
Section 3 does not prevent the registering court from questioning
the jurisdiction of the foreign court.632 To grant a valid final main-
tenance order that is not ancillary to a divorce decree, a foreign
reciprocating state must have had jurisdiction in personam in the
enforcing court conflict of laws sense over the respondent.
Section 3A provides a procedure and specifies the grounds for
setting aside maintenance orders registered under section 3. If
such section had been before the Alberta Court in Coopey v. Coopey
a different result would have been reached.
In Re Ducharme v. Ducharme 633 the Ontario Court of Appeal
distinguished between the jurisdictional requirement for registra-
tion of a final maintenance order –
issued by a reciprocating state
and that for registration of a provisional order. 3 The applicant
wife of the defendant husband had been granted a divorce decree
in the State of Michigan with an ancillary order for payment of
weekly alimony. The Michigan court did not have jurisdiction in
divorce because the husband was domiciled in Ontario or in per-
sonam because he did not attorn to the foreign jurisdiction. With-
out making any reference to Summers v. Summers 0 36
the Court of
Appeal relying on Re Kenny 3 7 and A. G. v. Scott 38 was of the
630 (1958), 13 D.L.R. (2d) 454.
631 [1951] 2 D.L.R. 98, [1951] O.R. 133.
632 Re Kenny, ibid. See also Wegner (Graves) v. Fenn (1969), 71 W.W.R. 76
(B.C.) where it was held that the domestic jurisdiction of the Saskatchewan
court that made the final order for maintenance was not apparent. Attorney-
General of B.C. v. Busch Kewitz, [1971] 3 W.W.R. 17 (B.C. Co. Ct.).
633 (1963), 39 D.L.R. (2d) 1.
634 S. 3, Uniform Act, Ont. Act, s. 2.
635S. 6, Uniform Act, Ont. Act, s. 5.
636 (1958), 13 D.L.R. (2d) 454.
637 [1951] 2 D.L.R. 98, [1951] O.R. 153; [1951] O.W.N. 157, 100 Can. C.C. 70
(CA.), rev’g [1950] O.W.N. 339, [1950] 3 D.L.R. 858.
638 [1956] 1 D.L.R. 423.
No. 1]
RECOGNITION AND ENFORCEMENT
opinion that registration of a final order of a reciprocating state
requires the order to have been given by a court having jurisdic-
tion over the person against whom an award is made.
In the case of a provisional order it is always possible for the
husband to raise any defence that he might have raised in the
proceedings in the court of the reciprocating state. Thus such an
order may be granted by a court in a foreign reciprocating state
without jurisdiction over the respondent.
In Needham v. Needham 639 a maintenance order was issued
ancillary to a divorce decree granted to a wife in England against
her husband who at all times was domiciled in Ontario. The hus-
band appeared in the action, intending not to defend the divorce
case but wishing to be heard on the question of maintenance of
his children and alimony. However the order was made before
he had had an opportunity to be heard. The English court assumed
divorce jurisdiction on the basis of the residence of the wife in
England. The Ontario court expunged the registration of the order
for maintenance on the ground that according to Ontario conflicts
rules the English court lacked jurisdiction to grant the divorce
decree to which the maintenance order was merely ancillary. In
the light of this case Summers v. Summers was wrongly decided.
Furthermore in Needham the husband’s appearance in the Eng-
lish court could not confer a jurisdiction beyond the competence
of the court. Also the English order was final while under section
4(1) of the Ontario Act, it should have been provisional. Thus the
Ontario statute had not been complied with. Finally, the fact that
the husband had not been heard on the making of the order was
in itself enough to vitiate it.
In both, Re Ducharme v. Ducharme and Needham v. Needham,
the alimony order was held invalid because the divorce decree to
which it was ancillary was granted without jurisdiction owing to
the lack of domicile of the respondent husband. It should be noted
that in Needham v. Needham the court set aside the maintenance
order that had been registered without express power in the Ontario
Act to do so.
Today, in Ontario, section 5A adopted in 1967, seems to deal
with this problem, although prima facie, it is difficult to reconcile
it with section 6A (1) of the Uniform Act. As noted previously,
section 6A (1) speaks of the registration of a maintenance order
containing provisions with respect to matters other than periodical
039 [1964] 1 O.R. 645, 43 D.L.R. (2d) 405.
McGILL LAW JOURNAL
[Vol. 17
payments of money as alimony, maintenance, or support, whereas
section 5A refers to an order or judgment including provisions
for maintenance in the determination of any other question. For
instance, under section 6A (1), one could envisage a maintenance
order that also contains provisions dealing with the ownership of
the matrimonial home; while section 5A would, for instance, cover
a divorce decree containing an order for the payment of main-
tenance. Is the difference in wording material? Not really.
The net effect of these provisions appears to be that it is possible
to separate maintenance provisions from other matters or from
the divorce.
Furthermore, if the foreign court had jurisdiction in rem to
decree the divorce, it may not have had jurisdiction in personam
to order the husband to pay maintenance.
If the foreign court had no jurisdiction in rem to grant the
divorce, it could still have had jurisdiction in personam to order the
payment of maintenance.6 0 The enforcing court is only concerned
with the maintenance provisions of the foreign order and the de-
fendant is allowed to attack that order on the ground that the court
that made it did not have jurisdiction in personam over him. In other
words, in Ontario, under section 5A, a foreign maintenance order
stands by itself and not as part of the larger question such as
divorce or custody.
If the foreign maintenance order contains provisions with respect
to matters other than the periodical payment of money as main-
tenance, only that part of the order dealing with maintenance may
be registered providing of course that the foreign court had juris-
diction over the person of the defendant.P 1
Submission to the foreign court will not give that court com-
petence to grant a divorce but should give it competence in personam
to make a maintenance order. Even though the result may seem
odd, there is no reason why an order for maintenance that is
ancillary to a divorce decree should fall with it if it is an invalid
decree so long as the court had jurisdiction in personam over the
defendant to make the order.
The foreign court operates on two levels: it must have juris-
diction in rem to grant the divorce decree and jurisdiction in
personam over the defendant to make the maintenance order.
Some clarification is still needed.
640S. 3A (3)(a), Uniform Act, s. 5A Ont.
641 S. 3A (3) (a), Uniform Act. S. 5A, Ont. Act.
No. 1]
RECOGNITION AND ENFORCEMENT
In Manitoba, where, on receipt by the court of a certified copy
of a maintenance order for registration, it appears to the court
that the order is in respect of different matters or forms part of
a judgment that deals with matters other than the maintenance
order, and that part of the order or judgment that relates solely
to the maintenance order, if it had been contained in a separate
order, could properly be registered under the Manitoba Act, the
order or judgment may be registered in respect of that part thereof
that relates solely to the maintenance order. 42 This provision is
also intended to overcome Re Fleming v. Fleming and Re Paslowski.
c) Maintenance Orders Against Non Residents
i) Transmission of maintenance orders mode locally
Where a court in one of the Canadian provinces or territories
has on the application of a dependant who is resident within the
jurisdiction made a maintenance order against a person who is
resident in a reciprocating state, the court shall, on the request of
the person in whose favour the order was made, send a certified
copy of the order to the Attorney-General for transmission to the
proper officer of the reciprocating state 43
ii) Provisional maintenance orders against persons residing outside
the jurisdiction
Where an application is made by a dependant within the juris-
diction for a maintenance order against a person resident in a
reciprocating state, the court may, in the absence of that person
and without service of notice on him, if after hearing the evidence
it is satisfied of the justice of the application, make a provisional
order which has no effect until it is confirmed by a competent
court in the reciprocating state.14
In the case of a provisional order made under this part of the
Act the substantive order is not that order but the confirmation
order made in the reciprocating state.
642 S. 3(4) of the Manitoba Reciprocal Enforcement of Maintenance Orders
Act R.S.M, 1970 c. M20. As to the Enforcement of Maintenance Orders under
the Imperial Maintenance Orders (Facilities for Enforcement) Act, 1920, c. 33,
see Burak v. Burak (1949), 1 W.W.R. 300 (Sask.).
643 S. 4 Uniform Act. This section completes section 3.
644Ibid., s. 5. Andrie v. Andrie (1967), 60 W.W.R. 53 (Sask.): The application
for a provisional order is simply the initiation of proceedings to be concluded
in the reciprocating state where the husband resides.
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[Vol. 17
The Act contains various provisions dealing with the evidence
of the witnesses who are examined on an application for a provi-
sional order,645 the preparation of statements, showing, for instance,
the grounds on which the making of the order might have been
opposed if the person against whom the order was made had been
duly served with a statement of claim or writ of summons and had
appeared at the hearing, and the transmission of documents to the
Attorney General. 6
The court of the reciprocating state, where the provisional order
has come for confirmation, may ask it to be remitted to the original
court for the purpose of taking further evidence. 47 If upon the
hearing of such evidence it appears to the original court that the
order ought not to have been made, that court may rescind it. In
any other case the evidence will be sent to the enforcing court.0 48
The confirmation of an order does not affect any power of the
original court to vary or rescind it, but an order varying an original
order has no effect until it is confirmed in like manner as the
original order.649
Varying or rescinding orders must be transmitted to the proper
officer of the reciprocating state in which the original order was
confirmed. 1 0
An applicant for a provisional order has the same right of
appeal if any, against a refusal to make the order as he would
have had against a refusal to make a maintenance order if a state-
ment of claim or writ of summons had been duly served on the
person against whom the order is sought to be made. 51
d) Confirmation of Maintenance Orders Made in Reciprocating
States
A provisional maintenance order made in a reciprocating state
has no effect until confirmed by the proper court in the state where
it is sought to be enforced against a local resident.
Upon receipt of the copy of the order together with the depo-
sitions of witnesses and a statement of the grounds on which the
645 S. 5(2), Uniform Act.
640 Ibid., s. 5(3).
048Ibid., s. 5(4).
48 Ibid., s. 5(5).
cag lbid., s. 5(6).
650 Ibid, s. 5(7).
051 Ibid., s. 5(8).
No. 1]
RECOGNITION AND ENFORCEMENT
order might have been opposed if the person against whom the
order was made had been a party to the proceedings, the confirming
court will issue a summons calling upon the person against whom
the order was made to show cause why the order should not be
confirmed, and cause it to be served upon such person . 5 2 At a
hearing this person may only raise the defences that he might have
raised in the original proceedings if he had been a party thereto.s 2a
The statement from the court that made the provisional order,
stating the grounds on which the making of the order might have
been opposed if the person against whom the order was made had
been a party to the proceedings, is conclusive evidence that those
grounds are grounds on which objection may be taken.6 53
In Bailey v. Bailey 6 54 a wife living in Manitoba with her husband
left the matrimonial home and established her residence in Ontario,
where she obtained a provisional order which was sent to Manitoba
for enforcement. The Manitoba court refused to confirm or enforce
the order on the ground that the Ontario court had no jurisdic-
tion. On appeal the Supreme Court of Canada held that this was
wrong. “To hold that a provisional order can be made only by a
Court which has jurisdiction to make a final and binding order of
maintenance against the husband would be to defeat the whole
purpose of this part of the legislative scheme.” Thus on an appli-
cation in Manitoba to confirm a provisional order made in Ontario,
it is not a valid objection to the application that the Ontario court
had no jurisdiction to make the provisional order on the ground
that the husband’s desertion occurred not in Ontario but in Manitoba.
In Hawryluk v. Hawryluk 615 a deserted wife sought confirmation
in Saskatchewan of a provisional order for maintenance made in
British Columbia under the Wives’ and Children’s Maintenance
Act6′ and the Reciprocal Enforcement of Maintenance Orders
Act.6 57 She was deserted by her husband while both were residing
652Ibid., s. 6(1).
652a See Ross v. Polak, [1971] 2 W.W.R. 241 (Alta. CA.) relying upon Attorney-
General for Ontario v. Scott, [1956] S.C.R. 137, per Locke, J., at p. 151 and
Bailey v. Bailey (1968), 64 W.W.R. 502, 68 D.L.R. (2d) 537, at p. 543. Contra:
Morrissey v. Morrissey (1969), 70 W.W.R. 140, 7 D.L.R. (3d) 174 (Sask. D.C.).
6531bid., s. 6(2) and Storms v. Storms (1953), 8 W.W.R. (N.S.) 458 (Alta).
654 (1968), 64 W.W.R. 502, 68 D.L.R. (2d) 537 (S.C.C.) per Certwright, CJ.,
at p. 545 (D.L.R.).
655 (1966), 54 W.W.R. 661 (Sask.).
656 R.S.B.C., 1960, c. 409 as amended by S.B.C., 1963, c. 53, S.B.C., 1965, c. 58,
S.B.C., 1966, c. 56 and S.B.C., 1968, c. 12.
657 R.S.B.C., 1960, c. 332 as amended by S.B.C., 1961, c. 59 and S.B.C., 1968.
c. 12.
McGILL LAW JOURNAL
[Vol. 17
in Saskatchewan and he was still residing there when she obtained
her order in British Columbia. The Saskatchewan District Court
judge refused to confirm the provisional order on the ground that
the British Columbia court had no jurisdiction as there was no
evidence that the wife was residing in that province when she laid
her complaint and the husband was not residing in British Colum-
bia when he deserted her. Subsequently in Douglas v. Douglas1 8
the same District Court judge again refused to confirm a provi-
sional order made in British Columbia under the same Acts. In
that case the wife was residing in British Columbia when she laid
her complaint but the husband resided in Saskatchewan at all
material times. It would seem that the wife could only bring a
maintenance claim where the desertion was alleged to have taken
place, or where the husband was resident. The wife cannot pick
at will a jurisdiction which she might find favourable for the bring-
ing of her claim. However, in Andrie v. Andrie 659 another Saskat-
chewan District Court judge disagreed with Douglas and granted
a provisional order under the relevant Saskatchewan Acts where
the wife laid her complaint while residing in Saskatchewan and
the husband deserted her while both were residing in Alberta. The
application for a provisional order is simply the initiation of pro-
ceedings under the Act to be concluded in the jurisdiction where
the defendant resides. The Act protects local residents whether
they are deserted within or without the jurisdiction. However, ulti-
mately, the provisional order must derive its legal force and effect
entirely from the statute where it is sought to be confirmed. The
confirming court is not completing an operative foreign order
whether in relation to a province or to another country. It is making
an original order of its own, the preliminary grounds and condition
of which is a step taken elsewhere. That step has no substantive
efficacy until by acceptance it is adopted and incorporated in the
action of the confirming court. 0
Under sections 5 and 6 of the Uniform Act:
… the liability upon the husband to pay maintenance is created solely
by the law of the province where the confirming order is made against
him. The only judicial jurisdiction exercised over him is that of the
province where he resides at the time the confirming order is made.
Since a provisional order as such in no way imposes liability upon the
husband, it appears to follow that the issuing province or country does
658 (1967), 58 W.W.R. 42 (Sask.).
659 (1967), 60 W.W.R. 53 (Sask.).
000 A.G. for Ontario v. Scott et al., [1956] S.C.R. 137, (1956), 1 D.L.R. (2d)
433, at pp. 438-439, per Rand, J.
No. 1]
RECOGNITION AND ENFORCEMENT
not need to have jurisdiction in personam in order to make a valid
provisional order against a non resident husband. Should it be necessary
that the court granting the provisional order have local jurisdiction when
the husband but is only
the order has no operative effect against
evidentiary?661
In Meyers v. Meyers 1
2 the Ontario court refused to confirm a
provisional order made in Manitoba on the ground that the Mani-
toba court had no jurisdiction to make the order as the desertion
of the wife took place in Ontario where the parties were resident.
The court may confirm the order, either without modification
or with such modifications as it considers just.6 63 There is only one
substantive effective order which is the one made under and which
draws its substantive effectiveness from the law of the confirming
court. The provisional order made in the reciprocating state has
no force or effect of itself; the rights are effectively dealt with, and
the issues settled, by the confirmation order.
Actually, this part of the Act is designed to follow the husband
by reaching him in a reciprocal jurisdiction where the wife is
residing in the jurisdiction from which the husband has fled6 4
If the person against whom the provisional order has been made
satisfies the court that, for the purpose of any defence, it is neces-
sary to remit the case to the court that made the order for the
taking of any further evidence, the confirming court may so remit
the case to the original court and adjourn the proceedings for the
purpose.
60 5
A provisional order that has been confirmed may be varied and
rescinded in like manner as if it had originally been made by the
061 1967 Proceedings 100.
602 [1953] 2 D.L.R. 255 (Ont.). In Holland v. Holland [1950] 1 W.W.R. 286,
96 C.C.C. 138 (B.C.), the court held that the domicile of the parties does not
affect the jurisdiction of a judge in Manitoba to make a provisional order
under the Wives’ and Children’s Maintenance Act, R.S.M., 1940, c. 235 on the
complaint of a wife residing therein, even though the husband is residing
and domiciled in another province.
663 1961 S.M., c. 36 s. 6(3).
0 4 As to confirmation of a provisional order under the Imperial Maintenance
(
Orders (Facilities or Enforcement) Act 1920, c. 33, see Stevenson v. Stevenson,
[1947] 2 W.W.R. 962 (Sask.). Burak v. Burak, [1949] 1 W.W.R. 300 (Sask.). In
the latter case, the court rejected the view that the object of the Imperial
Act is to enforce orders for maintenance only against persons domiciled in
England who have emigrated to other parts of Her Majesty’s Dominions to
which the Act extends. With respect to the burden of proof in the case of
an application for confirmation, see Shaw v. Shaw, [1948] 1 W.W.R. 395 (Alta).
605 Uniform Act, s. 6(4).
McGILL LAW JOURNAL
[Vol. 17
confirming court. For this purpose the court may remit the case
to the original court for the taking of evidenceY.0
The person bound by the confirming order may appeal it.”07
Where the court has declined to confirm the order or has varied
or rescinded it, the person in whose favour it was made has a like
right of appeal.”0 ‘ Once confirmed the order has the same force
and effect as if it had originally been obtained in the court in
which it is so confirmed and that court has the power to enforce
the order accordingly. 6 9
Finally, the Act provides for the conversion to Canadian currency
of orders expressed in foreign currency. The rate of exchange appli-
cable is that prevailing at the date of the provisional order of the
court in the reciprocating state.670
e) General
The court in which an order has been registered or confirmed
under the Act, and the officers of the court, must take all proper
steps for enforcing this order. 7
In British Columbia, security for costs will not be ordered
where the plaintiff resides in a state or province to which the Act
applies
2
In Ontario, in an action for recovery of arrears of maintenance
and costs awarded by a foreign judgment, it was held that it would
not be a proper exercise of the discretion under the rules of prac-
tice to order a wife resident abroad and who has been deprived
of means of support to give security. 7 3
666 Ibid., s. 6(5) and see Re Ready (1968), 67 D.L.R. (2d) 513, 63 W.W.R. 306
(B.C.).
667Ibid., s. 6(6).
668 Ibid., s. 6(a).
669Ibid., s. 6(7).
67OIbid., s. 6(8).
071Ibid., s. 7. In British Columbia see Re Ready (1968), 63 W.W.R. 306, 67
D.L.R. (2d) 513. Where the maintenance order has been registered or the court
has by its order, confirmed, or varied or varied and confirmed a provisional
order made in a court of a reciprocating state or officers of the court have
taken, or are about to take, steps to enforce the order so registered or a
provisional order so confirmed, any party to the matter may appeal against
the registration or the confirming order, or against the enforcement thereof.
See R.S.M., 1970 c. M20, ss. 7(1) and (2). Uniform Act, s. 7.1, 1970 Proceedings
340.
672Edgar v. Erickson (1969), 69 W.W.R. 551 (B.C.); see also Schmidt and
Schmidt v. Schmidt (1964), 43 D.L.R. (2d) 61, 44 W.W.R. 613
073 Rule 373 et seq., Gamble v. Gamble, [1952] O.W.N. 173, [1952] 4 D.L.R. 525
reversing [1951] O.W.N. 886; Henshav v. Henshaw, [1938] O.W.N. 29.
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RECOGNITION AND ENFORCEMENT
A document purporting to be signed by a judge or officer of
a court in a reciprocating state shall, until the contrary is proved,
be deemed to have been so signed without proof of the signature
or judicial or official character of the person appearing to have
signed it, and the officer of a court by whom a document is signed
shall, until the contrary is proved, be deemed to have been the
proper officer of the court to sign the document.174
Depositions or transcripts from shorthand of evidence taken in
a reciprocating state, for the purpose of the Act, may be received
in evidence before the enforcing court. 675
Where the order is in a foreign language it must be translated
into the English Language.'”
The fact that the order to be registered or confirmed or any
accompanying document uses terminology different from that used
in the enforcing court does not vitiate any proceedings under the
Act. 77
Nothing in the Act deprives a person of the right to obtain a
maintenance order instead of proceeding under the Act.0 78
Finally the Lieutenant-Governor in Council may make regulations
for the purpose of giving effect to the provisions of the Act. 79
The procedures provided by the Uniform Act have been very
beneficial and have fulfilled most of the expectations of those who
drafted it. However, there are still some difficulties to be ironed
out due to the fact that some sections of the Act have been inter-
preted differently by the courts of some provinces in spite of the
fact that section 16 of the Uniform Act declares that “This Act
shall be so interpreted as to effect its general purpose of making
uniform the law of the provinces that enact it”. 680
United Nations Convention on the
Recovery Abroad of Maintenance, 1956681
The purpose of this convention is to facilitate the recovery of
maintenance to which a “claimant” who is in the territory of one
074Uniform Act, s. 11.
675 Ibid., s. 12.
070 Ibid., s. 13.
677 Ibid., s. 14.
078 Ibid., s. 15.
079 Ibid., s. 10.
080 See also Bailey v. Bailey (1968), 64 W.W.R. 502, 68 D.L.R. (2d) 537 (S.C.C.),
at p. 543, per Cartwright, C.J.
081 The convention is not in force in Canada. It can be found in 1957, vol.
268 of United Nations Treaty Series at p. 32.
McGILL LAW JOURNAL
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of the contracting states, claims to be entitled from a “respondent”
who is subject of another contracting state. 82 To effect this pur-
pose, each contracting state must designate the authorities which
shall act, in its territory as Transmitting Agencies and as Receiving
Agency. 83
The claimant may make application to a Transmitting Agency
in his state for the recovery of maintenance from the respondent.
The application must be accompanied by all relevant documents
and the Transmitting Agency must take all reasonable steps to en-
sure that the requirements of the law of the state of the Receiving
Agency are complied with. In this connection each contracting state
shall inform the Secretary-General of the United Nations as to the
evidence normally required under the law of the state of the Re-
ceiving Agency for the proof of maintenance claims, of the manner
in which such evidence should be submitted, and of other require-
ments to be complied with under such law.084
The Transmitting Agency will then transmit the documents to
the Receiving Agency of the state of the respondent, unless satis-
fied that the application is not made in good faith. However, before
transmitting such documents, the Agency must be satisfied that
they are regular as to form in accordance with the law of the
state of the claimant. The Transmitting Agency may also express
to the Receiving Agency an opinion as to the merits of the case
and recommend that free legal aid and exemption from costs be
given to the claimant.6 5
The Transmitting Agency shall, at the request of the claimant,
transmit any order, final or provisional, and any other judicial a6t,
obtained by the claimant for the payment of maintenance in a
competent tribunal of any of the contracting states. These orders
and judicial acts may be transmitted in substitution for or in
addition to the documents which must accompany the application
to the Transmitting Agency 6
The Receiving Agency shall take, on behalf of the claimant, all
appropriate steps for the recovery of maintenance, including the
settlement of the claim, and where necessary, the institution and
prosecution of an action for maintenance and the execution of any
order or other judicial act for the payment of maintenance 81 This
682 Art. 1.
683 Art. 2.
684 Art. 3.
685 Art. 4.
680 Art. 5.
687 Art. 6.
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RECOGNITION AND ENFORCEMENT
includes exequatur or registration proceedings or an action based
upon the act transmitted.688
The law applicable in the determination of all questions arising
in any such action or proceedings is the law of the state of the
respondent, including its private international law.689
If provision is made for letters of request in the laws of the
two contracting states concerned, a tribunal hearing the action for
maintenance may address letters of request for further evidence
either to the competent tribunal of the other contracting state or
to any other authority or institution designated by the other con-
tracting state in whose territory the request is to be executed. In
order that the parties may attend or be represented, the requested
authority must give notice of the date on which and the place at
which the proceedings are to take place to the Receiving Agency
and the Transmitting Agency concerned, and to the respondent 90
The provisions of the convention apply also to applications for
the variation of maintenance orders.69’
Finally the convention deals with security for costs and the
transfer of funds.6
0
2
It must be noted that the remedies provided by the conven-
tion are in addition to, and not in substitution for, any remedies
available under municipal or international law.6 93
In many respects the United Nations convention is substantially
similar to the model Uniform Act. However, the convention does
not modify any of the rules of conflict of laws in force in the
contracting states; it merely sets up new administrative proce-
dures designed to accelerate the recovery of maintenance claims.
Hague Convention on the recognition and
enforcement of maintenance orders, 1958
The convention provides for the recognition and the reciprocal
enforcement by contracting states, of maintenance orders made
in favour of unmarried, legitimate, illegitimate and adopted chil-
dren under twenty-one years of age.6
6S Art. 5(3).
689 Art. 6(3).
690 Art. 7.
691 Art. 8.
692 Arts. 9 & 10.
693 Art. 1(2).
694 It can be found in 1965, vol. 539 of United Nations Treaty Series at p. 27.
Art. 1. The convention applies only to that part of the foreign order that deals
with maintenance.
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[Vol. 17
In order to be recognized and enforced the maintenance order
must have been made by a competent court. The defendant must
have received proper notice of the action according to the law of
the state where it was brought. Where the order was rendered by
default, recognition and enforcement may be refused, if, in view
of the surrounding circumstances, it is without his fault that the
debtor did not know of the pendency of the action against him,
or did not defend himself. The order must be res judicata where
it was made. However a provisional order or one that may be varied
by the court which made it, is enforceable if it can be enforced
where it was made. The order must not be contrary to an order
made in the enforcing state which refers to the same object and
involves the same parties. Finally, the order must not be “mani-
festly incompatible” with the public policy of the enforcing state.”‘ 8
No examination of the merits of the order is to take place.090
According to article 3 of the convention, the only courts or
authorities that are competent to render a maintenance order are
those of the state where the debtor or creditor was habitually
resident at the beginning of the action or to which the debtor
submitted himself either expressly or by defending on the merits
without raising the question of jurisdiction.
The convention also indicates what documents the judgment
creditor must produce. 97
The procedure of enforcement is governed by the lex fori. Once
declared executory, the foreign order has the same force and effect
as if it had been an order originally made by the enforcing court.098
If the foreign order contains provisions that order the periodical
payment of money, enforcement will be granted for the amount
of arrears as well as with respect to future payments. 9 9 The provi-
sions of the convention apply also to orders that modify a previous
order.700 Finally the convention deals with legal aid, security for
costs, legalisation of documents, and the transfer of money.
The convention does not exclude other methods of enforcement
–
of maintenance orders under the lex fori or by virtue of other
international conventions.70 1
695 Art. 2.
696 Art. 5, by implication.
097 Art. 4.
698 Art. 6.
699 Art. 7.
700 Art. 8.
70 1Art. 11.
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RECOGNITION AND ENFORCEMENT
The Hague Convention contains some of the features of that
part of the model Uniform Act which deals with the enforcement
of maintenance orders made in reciprocating states. It does not
provide any administrative machinery for the enforcement of main-
tenance orders but unifies the conflict of laws rules governing their
recognition. Furthermore, the Hague Convention is quite restrictive
since it does not cover maintenance orders in favour of spouses.
Of particular interest are the provisions dealing with the jurisdic-
tion of the original court. The adoption of the habitual residence
of the claimant as a ground of international jurisdiction is a very
progressive step. Basically the Hague Convention is a conflict of
laws convention while the United Nations Convention is an admin-
istrative convention. Our model Uniform Act is both. This is its
strength and its weakness.
VI. Foreign Arbitration Awards
Arbitration avoids the delay, uncertainty and expense which is
often associated with litigation before foreign courts. Privacy and
usually a decision given by an expert in the trade concerned are
also very attractive in international trade.
So far not much use has been made in Canada of the various
methods of enforcement available to foreign award creditors. This
is not surprising as most businessmen comply with adverse awards.
Against the occasional defaulter private sanctions are usually more
effective than formal proceedings for enforcement.
In the common law provinces of Canada there are several
methods to enforce a foreign arbitration award, all of which re-
quire the assistance of a court.
1) Action on a judgment or action at common law
An arbitration award that has been made enforceable by a
foreign judgment may be enforced in Canada as a judgment. Thus
in Stolp & Co. v. Browne & Co.,70 2 the Ontario Supreme Court held
that when an arbitration award is presented to a foreign court of
competent jurisdiction in the manner prescribed by the foreign
rules of procedure and thereupon becomes effective as a judgment
it may be sued upon as a foreign judgment in Ontario.
It was also held that the absence of notice of the proceedings
in the foreign court as would be required in a like case in Ontario
702 (1930), 66 O.L.R. 73, 38 O.W.N. 400, [1930] 4 D.L.R. 703. Noted H.E. Read
(1934), 12 Can. Bar Rev. 259.
McGILL LAW JOURNAL
[Vol. 17
was immaterial where such notice was not required by the foreign
law. The court relied on Piggott’s 703 view that the award of an
arbitrator abroad does not come within the definition of a foreign
judgment until it is made an order of court. It is then merged in
that order which is in effect the judgment of the court in the
matter.
This view does not seem to be tenable today. As pointed out by
the editors of Dicey 74 a foreign arbitration award will be enforced
whether or not the law governing the arbitration proceedings re-
quires a judgment or order of a court to make the award enforce-
able. The reason given for this view is that the enforcement of
foreign awards is a matter of procedure governed by the lex fori.
The same local procedure should apply ot all awards whether they
are local or foreign. 7
5
1
Furthermore, if the award is made enforceable by a foreign
judgment, it would seem that the cause of action does not merge
in the foreign judgment. The judgment creditor can still sue on
the original cause of action. He may either seek to enforce the
award or the judgment. If on the other hand an action is brought
to enforce the award itself the non-merger rule should not apply.
These views have not yet been accepted in Canada. However a
single reported decision is not sufficient to fix the law. It is suggested
that Canadian courts should follow recent English practice in this
field.
In the Stolp case, the court also pointed out that an arbitration
award that has been reduced to a judgment in the country where
it was rendered may be sued upon, subject to such defences as
are available, as a foreign judgment.
In addition to the grounds on which a foreign judgment can
be impeached at common law the agreement to arbitrate must be
valid by its proper law and the award must be valid and final
according to the law governing the arbitration proceedings. These
703 Foreign Judgments and Jurisdiction (3rd ed., 1908), p. 95.
704 Op. cit., rule 177.
705 In England, see Union Nationale des Co-opgratives Agricoles de Cdrdales
v. Robert Catterall & Co. Ltd., [1959] 2 Q.B. 44, cited by Dicey where it is
pointed out that although the case was decided under Part II of the Arbi-
tration Act 1950, 14 Geo. 6, c. 27, the principles applied by the Court apply
with equal force to cases arising at common law ( op. cit., p. 1054). The editors
of Dicey reject Merrifield Ziegler & Co. v. Liverpool Cotton Association (1911),
105 L.T. 97 where the court refused to enforce a foreign award as such. This
case was approved in Stolp & Co. v. Browne & Co., although the court dis-
tinguished it from the case at bar.
No. 1]
RECOGNITION AND ENFORCEMENT
rules should also apply to a foreign award that has not been re-
duced to judgment. There is no reason why foreign arbitration
awards should be treated differently than foreign judgments. In
all cases the arbitrators must have acted within the terms of the
authority which was given to them by the agreement to arbitrate.
2) Registration
The Reciprocal Enforcement of Judgments Act of each of the
provinces and territories applies to an award in an arbitration
proceeding if the award under the law in force in the jurisdiction
where it was made has become enforceable in the same manner
as a judgment given by a court in that jurisdiction.78 In some
provinces the Act is restricted to awards made in other provinces
or territories. 7
Such awards can be registered in like manner as if they were
judgments. However the plaintiff may still bring an action on his
award or on the original cause of action provided it has not become
8
merged in the award by the law of the arbitration proceedings
All the provisions of the Act apply to awards registrable as
judgments thereunder. 0 9 The registering court must also make
sure that the agreement to arbitrate was valid by its proper law
and that the arbitration tribunal acted within the terms of the
agreement.
2) Newfoundland
In Newfoundland, The Arbitration (Foreign Awards) Act 710 gives
effect to a Protocol on Arbitration Clauses which provides for the
recognition by Contracting States of the validity of arbitral agree-
ments and to a Convention on the Execution of Arbitral Awards.
Both conventions were signed at Geneva by the United Kingdom,
the former on September 24th, 1923 and the latter on September
26th, 1927.
Arbitration in international trade can be impeded if national
courts are free to ignore arbitral agreements and awards and to
assume jurisdiction over matters covered by arbitral agreements.
706E.g. S.A., 1958, c. 33, s. 2(1)(a); R.S.M., 1970, c. J20, s. 2(1)(a); R.S.B.C.,
1960, c. 331, s. 2(1).
707 E.g. R.S.S., 1965, c. 92, s. 92, s. 2(1)(a); R.S.O., 1960, c. 345, as am., s.
1(1)(a).
708 See e.g. SA., 1958, c. 33, s. 11.
709 See preceding section.
710 (1931), 22 Geo. V, c. 2.
McGILL LAW JOURNAL
[Vol. 17
The 1923 Protocol binds Contracting States to recognise inter-
national arbitral agreements in commercial matters and to remove
disputes covered by such agreements from the jurisdiction of the
courts. The Convention of 1927 follows as a necessary corrollary.
The Contracting States undertake to provide the same facilities
for the enforcement of foreign awards as are provided for the
enforcement of awards made within their own jurisdiction.
In 1958 a Convention on the Recognition and Enforcement of
Foreign Arbitral Awards was signed in New York. It was intended
to improve the existing system of international recognition and
enforcement of foreign awards. The Conventioon is not in force
in any of the Canadian provinces or territories.
Under The Arbitration (Foreign Awards) Act, a foreign award
made in pursuance of an agreement not governed by the law of
Newfoundland, to which the Protocol applies, between parties who
are subject to the jurisdiction of States which are declared by the
Governor in Council to be parties to the Convention, in a territory
to which the convention is declared to apply by the Governor in
Council is enforceable in Newfoundland either by action or under
the provisions of Part VI of the Judicature Act. The award must
be treated as binding for all purposes on the persons as between
whom it was made, and may be relied on by any of those persons
by way of defence, set off or otherwise in any legal proceedings
in Newfoundland.
According to section 4(1): “In order that a foreign award may
be enforceable under this Act it must have –
(a) been made in pursuance of an agreement for arbitration
which was valid under the law by which it was governed;
(b) been made by the tribunal provided for in the agreement
or constituted in manner agreed upon by the parties;
(c) been made in conformity with the law governing the arbi-
tration procedure;
(d) become final in the country in which it was made;
(e) been in respect of a matter which may lawfully be referred
to arbitration under the law of Newfoundland;
and the enforcement thereof must not be contrary to the public
policy or the law of Newfoundland.
(2) Subject to the provisions of this sub-section, a foreign award
shall not be enforceable under this Act if the court dealing with
the case is satisfied that –
No. 1]
RECOGNITION AND ENFORCEMENT
(a) the award has been annulled in the country in which it
was made; or
(b) the party against whom it is sought to enforce the award
was not given notice of the arbitration proceedings in suf-
ficient time to enable him to present his case, or was under
some legal incapacity and was not properly represented; or
(c) the award does not deal with all the questions referred or
contains decisions on matters beyond the scope of the agree-
ment for arbitration:
Provided that, if the award does not deal with all questions re-
ferred, the court may, if it thinks fit, either postpone the enforce-
ment of the award or order its enforcement subject to the giving
of such security by the person seeking to enforce it as the court
may think fit.
(3) If a party seeking to resist the enforcement of a foreign
award proves that there is any ground other than the non-exist-
ence of the conditions specified in paragraphs (a), (b) and (c) of
sub-section (1) of this section or the existence of the conditions
specified in paragraphs (b) and (c) of subsection (2) of this sec-
tion, entitling him to contest the validity of the award, the court
may, if it thinks fit, either refuse to enforce the award or adjourn
the hearing until after the expiration of such period as appears
to the court to be reasonably sufficient to enable that party to take
the necessary steps to have the award annulled by the competent
tribunal.”
Section 5(1) states that: “The party seeking to enforce a foreign
award must produce –
(a) the original award or a copy thereof duly authenticated in
manner required by the law of the country in which it was
made; and
(b) evidence proving that the award has become final; and
(c) such evidence as may be necessary to prove that the award
is a foreign award and that the conditions mentioned in
paragraphs (a), (b) and (c) of sub-section (1) of section
[4] are satisfied.”
Provision is also made for the translation of the award into the
English language. The translation must be certified as correct by
a diplomatic or consular agent of the country to which that party
belongs, or certified as correct in such other manner as may be
sufficient according to the law of Newfoundland.
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[Vol. 17
An award is not final if any proceedings for the purpose of
contesting the validity of the award are pending in the country in
which it was made.
Finally the Act does not deprive any interested party of the
right of availing himself of an arbitral award in the manner and
to the extent allowed by the law of Newfoundland. Thus the com-
mon law methods of enforcement are retained as well as registra-
tion. In view of the fact that the Newfoundland Reciprocal Enforce-
ment of Judgments Act 711 applies to awards wherever made, it
would seem that the Arbitration (Foreign Awards) Act is of little
practical use.
The Act maintains the principle that arbitration is a legal
process subject to control by the appropriate legal authorities of
the countries in which it is carried out. It does not substantially
change the ordinary practice of the courts. Only with respect to
stay of proceedings does the Act involve an important change of
legal policy since the Newfoundland courts no longer enjoy a dis-
cretionary power to stay proceedings in any matter covered by
an arbitral award to which the Protocol applies. Now they must
stay such proceedings.
711 S. Nfld. 1960, No. 12, s.2(1)(a).
