Enforcement of a Foreign, Extra-provincial or International Money Judgment
The purpose of this article is to summarize the legal process required to enable an Ontario court to recognize as valid and thus allow for the enforcement of, a foreign (meaning: extra-provincial or, international) money judgment.
Is Your Judgment Enforceable in Ontario, Canada?
A foreign judgment is prima facie enforceable in Ontario, Canada if it meets the following three criteria:
- the judgment originated from a court that had jurisdiction under the principles of private international law as applied by Canadian courts;
- the judgment is final and conclusive in the original jurisdiction; and
- the judgment is for a definite and ascertainable sum of money, or if not a money judgment, its terms are sufficiently clear, limited in scope and the principles of comity require the domestic court to enforce it.
Defending the Enforceability of a Foreign Judgment
If the foreign judgment satisfies these criteria, it may be recognized as valid and enforceable in Ontario, Canada, unless the respondent convinces the court to the contrary. Canadian law limits the defences that may be advanced in the enforcement of a foreign judgment. The following defences may be used to challenge the enforceability of a foreign judgment:
- the judgment is based on a penal, revenue or other public law of the foreign jurisdiction;
- the judgment was obtained by fraud;
- the judgment was issued in circumstances that deprived the Canadian defendant of natural justice; or
- the judgment violates Canadian public policy.
Steps to Take to Enforce a Foreign Judgment
In Ontario, a foreign judgment creditor has to commence a lawsuit to recognize, as valid and enforceable, a foreign (extra-provincial or international) money judgment. An action of this kind is typically commenced by issuing, with the Ontario Superior Court of Justice and, then serving, on the foreign judgment debtor, who is resident in Ontario, with a Notice of Application. The Application Record will have to include affidavit evidence that will detail, with supporting exhibits, the judicial process undertaken in the foreign, extra-provincial or international jurisdiction, that led to the judgment.
Although discussed mainly for background, the merits of the foreign action are not the focus, but, rather, the judicial process is what is central for the Ontario Court to scrutinize. As discussed above, a prescribed legal test will have to be met by the Applicant or foreign judgment creditor, in order to persuade the Ontario Court to recognize the foreign money judgment as valid and enforceable in Ontario, as if it were a judgment made by the Ontario Court.
In addition to mandatory affidavit evidence, a Factum (statement of facts, issues and law) is required to be filed by the Applicant. The judgment debtor will either appear and respond to the Application (using the limited defences available), or not. Either way, the Application will come before a hearing to a Judge of the Ontario Superior Court of Justice. If and when the Court recognizes the foreign judgment as valid in Ontario, enforcement, on the now Ontario judgment, is the next complex step.