FAQ: Frequently Asked Questions
about enforcing foreign judgments in Canada
The Supreme Court of Canada has made it clear that there are three recognized defences to enforcement actions:
- Public Policy
- Fundamental Justice
The Court specifically indicated that additional defences may be possible in the future in limited circumstances. Each of the three defences listed above have been interpreted quite strictly.
No. Issues that were part of the foreign proceeding will not be considered in the Canadian Action to enforce the judgment. These issues will be considered by the Canadian court to be res judicata, “a matter [already] judged”. Such issues are not subject to re-litigation in Canada.
Yes. Even though a judgment is under appeal, it will still be considered “final” for the purposes of enforcement. However, the party seeking to defend an action for recognition and enforcement may raise the fact that it is under appeal in the foreign jurisdiction on a motion to temporarily stay the enforcement action pending appeal.
Yes. Default judgments, properly obtained, are subject to recognition and enforcement in the same manner as are trial judgments.
There are limitation periods which apply to the recognition and enforcement of judgments in each Province and Territory of Canada. By way of example, Ontario has a 2-year limitation period which applies to enforcement actions, however, this period is subject to the doctrine of “discoverability.” In the context of enforcement proceedings, this means that the 2-year limitation period may not commence until you are aware that the debtor or the debtor’s assets are in Ontario. Limitations periods often involve more complexity than meets the eye and legal counsel should always be sought on a case by case basis.
If a foreign judgment is recognized and enforced in one province it may be enforced in any other province in accordance with reciprocal enforcement of judgments legislation which applies between provinces. However, this process is not “automatic” and there is a relatively simple procedure to be followed.
The process by which most foreign judgments are enforced in Canada is often quite expeditious. Because there are very few defences to enforcement actions, speedy default judgments and summary judgment motions in Canada are often successful.
Yes. A foreign judgment which provided non-monetary relief such as injunctions, constructive trust orders, specific performance orders etc. can be enforced in Canada if they are sufficiently precise and meet the guidelines set out by the Supreme Court of Canada.
Don’t wait! The limitation period to enforce the U.S. judgment in Canada may begin as early as the date of the U.S. default judgment. Seek the assistance of Canadian Counsel immediately to figure out the proper limitation period!