Recognition and Enforcement if In Personam Judgments

Recognition and Enforcement if In Personam Judgments In personam à judgment against an individual person/defendant - Can either be pecuniary (money) or non-pecuniary judgment - 3 methods of conversion - (1) Common law—only pecuniary judgments • Can be commenced from any jurisdiction • To enforce start an action - (2) Court Order Enforcement Act Part II • Every province in Canada except Que + 6 Western US states + UK + Germany • To enforce register judgment - (3) Enforcement of Canadian Judgments and Decrees Act • Obligation within Canada for provinces to recognize each other’s judgments • To enforce register judgment -Limitation periods to apply to have foreign judgment R&E by court— - s. 7 of Limitation Act à BC limitation period (10 years) of foreign limitation period, use whichever is shorter -To get recognition and enforcement of a foreign judgment, judgment creditor must show court that: -(1) Foreign judgment is final and conclusive - Look for res judicata—can the parties go back and alter the judgment? (Nouvian) - Examples in Canada • No F&C—maintenance orders. Support judgments • Yes—judgments on appeal -(2) Foreign court had jurisdiction in the international sense - Presence—was D in the action present and served at the beginning of the process, or • Service in jurisdiction enough to establish presence (Forbes v Simmons) • Domicile but not in BC when Served? No presence - Submission—was there submission to jurisdiction of foreign court, or • • • - - Did D participate in the trial in any way on its merits? § Yesà made motions beyond jurisdiction § Noà contest just jurisdiction + forum non conveniens (Mid Ohio Car) Submission determined objectively à look at actions not intention (First National Bank Houston) Submission must be voluntary § Submission just to contest seizure of property is involuntary, but be careful not to defend on merits (Clinton v Ford) Real + substantial connection between action and province (Canadian addition, Morguard) • Evaluate at the time the action started • Extended rule to non-Canadian judgments (Beals v Saldanha), comity • Test à requires a significant connection exist between the cause of action + foreign court § E.g. property in Florida • No real and substantial connection (Brainteck), presence was transitory § Look at forum rulesà would forum have jurisdiction under its own rule? Beals v Saldanaha, says that R&S is the overriding factor, but courts still use presence + submission -If (1) & (2) are found, D can still argue common law defenses Pecuniary Judgments Finality and Conclusiveness Nouvian v Freeman Final and conclusive, ask if the judgment is open for the parties to go back to court and order -F: R&E of Spanish judgment in England -A: How to determine final and conclusive needed for R&E—Determine if the foreign judgment is res judicata - Can the parties go back to the same court + get a new judgment? Trial de novo, if so not final Jurisdiction in the International Sense Presence Forbes v Simmons -F: D having BC judgment enforced against him in AB, served in BC while visiting -A: Served in the jurisdiction = presence Submission First National Bank Houston v Houston E&C Submission, determine objectively look at actions not intention -F: R&E of Texas judgment, bank wants it recognized in BC - D argued defenses at trial, now claiming no submission -A: Submission is determined objectively à look at actions not intention - Lawyer submitted without consulting D? Could effect submission, doesn't apply here so don't have to decide - This case—Submitted Clinton v Ford Submission, contesting seizure of property might not be submission as long as you don't go further -F: South African decision, R&E of judgment in Ontario, D had property in SA that was seized pending judgment - Argues submission was involuntary -I: Submission involuntary even though he was contesting seizure of property and not just jurisdiction of the court? -A: Possible to contest jurisdiction + contest seizure of property without submitting? - Henry v Geopresco, English case—“courts will not enforce against D if…they appear before the court solely to preserve those assets which have been seized by the court” • Appearance merely to save property is not voluntary BUT if D defends on merits it is - This case—Could’ve limited defense to (1) jurisdiction of SA court + (2) contesting validity of seizure of property • Finds that D actually did defend on the merits = submission Mid-Ohio Imported Car Co v Tri-K Investments Can argue jurisdiction + forum non conveniens without submitting, but don't go too far -F: Judgment from Ohio, TJ found D had not submitted to Ohio’s jurisdiction + no RS cxn b/w action and Ohio - Both D companies from BC, neither carry one business, reside or have assets in Ohio -I: R&E of foreign judgment, real and substantial connection? -A: filed defense of forum non-conveniens, motion denied and Ds withdrew - Defendant can dispute service + jurisdiction simpliciter + forum non conveniens without submission to the forum - This case—argued claim of fraud, submitted Real and Substantial Connection -Extension of Morguard rule to non-Canadian judgments -Real and substantial connection as grounds for finding that foreign court had jurisdiction in the international sense Morguard Investments v De Savoye Real and substantial connection as a basis for finding that provincial court had jurisdiction + R&E, within Canada -F: Recognition of judgment from one province in another, action in AB at time when D did not live there - Mortgage debt in AB, D in BC and never submitted to AB court -I: Whether personal judgment validly given in AB where D was not present or submitting may be enforced in BC -A: Canada should be more liberal in its rules for R&E interprovincially - Expanded the common law rule à “Ought to recognize judgments from other Canadian provinces IF, when action started there was a real and substantial connection between the action + the province” • 3 options for R&E (1) presence (2) submission and (3) real and substantial connection Beals v Saldanha Extension of R&S to non-Canadian judgments, need a significant connection between action + foreign court -F: judgment from Florida, house built on wrong lot, Florida default action because Ds never appeared or engaged with the action, seeking R&E in Ont -I: Real and substantial connection test extended to foreign judgments? -A: Found that extension of Morguard rule to non-Canadian judgments was permissible - Reasonable that foreign judgment where they assumed jurisdiction on same basis as domestic court would - Test à requires a significant connection exist between the cause of action + foreign court • Not fleeting or unimportant - This case—RS cxn (property was bought in Florida) and submission • Bought property in Florida, could reasonably expect to be sued there Braintech v Kostiuk Case where R&S connection was NOT foundàlook at foreign rules and how connected action was to jurisdiction -F: judgment from Texas, R&E in BC - P is BC company with office in Texas, D used internet to post defamatory information about P - D denies that he was served in Texas, notice was sent to the wrong address -I: Did Tex have real and substantial connection? -A: This case—no real and substantial connection between the action and Texas - Looks at American jurisdictional rules à claims that under own rules, Tex would not have jurisdiction - P claiming tort was committed in Texas • But, the action was merely transitory, passive presence in Tex (only posting on forum board) • Need more proof that D entered Texas than just the possibility that someone in Texas read the bulletin board Defences -Defences to R&E of foreign judgment, (In addition to exclusionary rules) -Common law defences— (Beals v Saldanha) - All narrow in scope, non-exhaustive - (1) Fraud—fraud going to jurisdiction or merits • Jurisdiction à can always be raised, problems where court was misled into taking jurisdiction • Merits à can only raise if there is new evidence not available in original action, can’t sit on hands - (2) Breach of natural justice—fair process, was foreign procedure in breach of fundamental justice • Can argue—procedural safeguards, notice, independence, opportunity to defend • Can’t argue—didn’t know applicable law, didn’t know the specific amount of damages involved (when you should know generally the amount at stake) • Look at procedure of foreign jurisdiction as a whole, not examining a specific case - (3) Public Policy—concerned with foreign laws, not results • Is foreign law contrary to our fundamental morality? • Use cautiously because you are judging a foreign law • Example where public policy infringed— (Pro Swing) § Contempt order requiring disclosure of personal information, privacy has quasi-constitutional nature § - Constitutional protections need to be afforded to Canadian citizens outside Canada (4) Error of law—not actually a defence (Godard v Gray), R&E is not a court of appeal -Burden always on D claiming defense, civil standard Godard v Gray Error of law in foreign judgment not a defense against R&E -F: French judgment on K governed by English law, court misapplied English law - R&E of judgment in England, D arguing that they should not recognize -I: Error of law by foreign court -A: Error of law is not a bar to enforcing judgmentà not a defense - Assertion that error in law means no enforcement cannot be supported, not a court of appeal Beals v Saldanha Common law defenses against R&E -F: Ont residents built on a property in Florida, lot confusion, default judgment against them in Florida (1M$), never submitted to Florida jurisdiction -A: 3 common law defenses against R&E à fraud + public policy + lack of natural justice (narrow and non-exhaustive) - (1) Fraud—Gets rid of extrinsic/intrinsic distinction, now use subject matter • Fraud going to jurisdiction—can always be raised § Ex. Fraud in jurisdiction of the issuing court/misleading the court into believing it has jurisdiction, serving wrong address, language discrepancy • Fraud going to merits—only raise of there is new evidence, couldn’t have been raised in original action • This case—Ds barred from attacking the evidence because they actively chose not to defend in court - (2) Natural justice—defense going to procedure • - Foreign proceedings contrary to Canadian notions of fundamental justice, concerned with fair process § Yes breaches— procedural safeguards, judicial independence, fair ethical rules, adequate notice, opportunity to defend § Not breaches—know/learn applicable foreign law, lack of knowledge, failure to disclose specific amount of damages claimed not defence where D knew general types of damages claimed • Looks at court as a whole, not particular case at issue • This case—Ds failed to raise reasonable apprehension of unfairness (minority found breach) (3) Public policy—Concerned with law of foreign court, not result in a particular case • Similar to exclusionary rule à Something that would “shock the conscience” • This case—focused on amount of damages, but found to not violate Non-Pecuniary Judgments Pecuniary (money) judgments à CL prepared to recognize -Hunt (Canadian) & Pro Swing (foreign), can extend common law rules for R&E to non-pecuniary judgments - To R&E a foreign, non-pecuniary judgment— (Pro Swing) • (1) Must satisfy all rules for R&E of pecuniary judgments (final, conclusive, jurisdiction in int’l sense) + • (2) Additional considerations specific to non-pecuniary § Sufficiently clear that D knows what is expected of them § Is it a burden on domestic judicial resources? (i.e. supervision, maintenance) § Must be of a nature that comity requires the domestic court to enforce § Can’t be penal • E.g. contempt order, quasi-criminal and therefore penal (Pro Swing) § Extraterritorial nature of the orders Hunt v T&N Use of Morguard rule (R&E of other Canadian judgments) in case of non-pecuniary judgment (doc discovery) -F: asbestos litigation in BC against corporate Ds in Que, order for document discovery (Que statute says they don’t have to) -A: Que statute acting as pre-emptive refusal of R&E of BC order - Declared Que law to be inapplicable to Canadian litigation - Authorized the recognition and enforcement of non-pecuniary judgments generally Pro Swing Inc v Elta Golf -F: Trademark, D selling golf clubs, P filed for contempt order because golf clubs not delivered + didn't take down ads - D contested R&E of consent decree—not final judgment in personam + contempt order excluded from R&E -I: Changing CL to allow enforcement of foreign non-money judgments? -A: Traditional CL rule—to have R&E, foreign judgment must be (a) for debt, definite sum + (b) final and conclusive - Case for changing CL (comity), but need careful + nuanced approach that attends to features of non-money orders - To have R&E of non-pecuniary judgement— • (1) Must have been rendered by a court of competent jurisdiction • (2) Must be final à Shouldn’t require a lot of judicial supervision, e.g. injunctions, complete and don’t require further action even if larger action continuing • (3) Must be of a nature that comity requires the domestic court to enforce -This case— 3 issues relevant to determining whether order meet conditions for RE - (1) Canadian courts won’t enforce penal order, contempt orders underscored by the criminal law protections afforded to D • Contempt orders not enforceable in Canada - (2) Burden on judicial system - (3) Extraterritorial nature of the orders • This case—D must have understood that settlement agreement would reach him in Ontario • But, extraterritoriality of orders in consent decree and contempt order, cannot enforce -Public policy defence à Contempt order in that it requires disclosure of personal information - Protection of personal information has a quasi-constitutional nature - Need to be assured that constitutional protections afforded to Canadian citizens applies outside Canada Statutory Regimes -CL rules and defenses for R&E of foreign judgments are supplemented by statutes -Judgment debtor has assets in BC, when selecting a statute consider… - Nature + category of order: where, pecuniary/non=pecuniary, final - Origin of judgment: • - Somewhere else in Canada à Enforcement of Canadian Judgments and Decrees Act § Full faith and credit • Outside Canadaà Consider Court Order Enforcement Act § Though can only use if BC has reciprocal agreement Or, use common law Judgments and Orders Court Order Enforcement Act -Use for judgments outside Canada if there is reciprocal agreement (Western US, UK, Germany, Australia) -Effecting conversion à must register the judgment s. 29(2) • Ex-parte registration • Short limitation period after registration § Judgment creditor has 30 days after registration to notify debtor § Debtor then has 30 days to object registration § If debtor fails, very good chance judgment stands -**Doesn’t incorporate Morguard, real and substantial connection not enough for jurisdiction in int’l sense • Must show presence or submission (Central Guaranty Trust) -s. 29(6) debtor defenses—(a) court acted without jurisdiction or without authority (b) no presence or submission, (c) ordinarily resident but not served, (d) fraud, (e) appeal is pending, (f) public policy Central Guaranty Trust v De Luca -F: Seeking to have Ont judgment converted in NWT - Ex-parte registration under Court Order Enforcement Act -A: Statute for reciprocal enforcement of judgments don’t incorporate Morguard R&S - S. 29(2) ex-parte application for registration • S. 29(6) Debtors defenses—acted without jurisdiction, no submission, fraud Enforcement of Canadian Judgments and Decrees Act -Applies to all Canadian provinces + territories -Covers pecuniary + non-pecuniary judgments -s. 6 Blind full faith + credit clause -Provisions— - - Definitions – "Canadian judgment" means a judgment, decree or order made in a civil proceeding by a court of a province or territory of Canada other than British Columbia • (a) that requires a person to pay money § Note = pecuniary in personam judgments, implements Morguard • (b) under which a person is required to do or not do an act or thing, or § Note = non-pecuniary orders (implements Pro Swing) • (c) that declares rights, obligations or status in relation to a person or thing, § Note: in rem judgments but not interpreted judicially • But does not include a judgment, decree or order that § (d) is for maintenance or support (note—for this use the Interjurisdictional Support Orders Act) § (e) is for the payment of money as a penalty or fine for committing an offence, • Note = won’t enforce penal order § (f) relates to the care, control or welfare of a minor, except in the case of Canadian civil protection order, § (g) is made by a tribunal of a province or territory of Canada other than British Columbia, § (h) Granting probate or issuing grant of administration or administration of estate of deceased person Limitation period—s. 5, 10 years or date within judgment s. 6, full faith and credit—“may apply to BCSC for direction in enforcement of a Canadian judgment” • s. 6(3) BC must not make order limiting a judgment, solely on the grounds that… § (a) Court lacked jurisdiction under private international law or domestic law § (b) mistake of law § (c) Defect in process (breach of natural justice or fraud) • Only defense remaining is breach of public policy Arbitral Awards -Defences to arbitral awards à breach of NJ, public policy -Statutes—Foreign Arbitral Awards Act & International Commercial Arbitration Act Shreter v Gasmac Inc Arbitral awards, possible defences of natural justice and public policy -F: Ont corporation in contract with cor1p in Georgia // Arbitration + choice of law clause in Georgia -A: Getting award R&E in Ont - Can you argue that arbitration has merged into judgment and therefore need to use R&E of judgment Act? No • Merger is a matter of law of the forum - Breach of natural justice? Arbitrators did not give reasons • In Ont this would normally be a breach of NJ, BUT arbitration under Georgia, so need to apply the law of Georgia (which says no reasons is fine) - Award inconsistent with public policy? • Challenging acceleration of royalty payments, not good enough