December 11, 2017

Blog:

In recent years, there is an increasing number of foreign judgments being enforced in British Columbia. Having a foreign judgment recognized and enforced in BC is a practical solution to the issue of having a dry judgment in a place where the judgment debtor does not have sufficient assets to pay or the general difficulty in collecting money. This blog talks about the basic mechanism in enforcing foreign judgments in our province.

Origin of the foreign judgment

If you are a judgement creditor who is considering enforcing a foreign judgment in BC because there is a reasonable belief that the judgement debtor has assets in the province, you should seek a BC lawyer’s help to consider what options are available to you.

Depending on the origin of the foreign judgment, the complexity of the enforcement effort differs. What is certain, however, is that in BC, the court does not need to have any connection to the dispute in the original litigation matter, nor does the defendant have to be in BC or have assets here for the purpose of recognizing the foreign judgment.

Enforcing a judgment from a reciprocating jurisdiction

A number of foreign jurisdictions are recognized as reciprocating jurisdictions in BC, which means that judgments from those jurisdictions are recognized by the BC court automatically. It also means that a judgment from a reciprocating jurisdiction does not need to be converted into a BC judgment before it can be enforced in the province.

The statute that sets out the reciprocating jurisdictions for judgment enforcement purpose is called Court Order Enforcement Act. Those reciprocating jurisdictions are:

  • The eleven other provinces and territories in Canada, except for Quebec;
  • Eleven states and territories of Australia;
  • Six states in the United States (Washington, Alaska, California, Oregon, Colorado and Idaho);
  • Germany;
  • Austria; and
  • The United Kingdom.

If a judgment is from any of the above listed jurisdictions, all you have to do is to register the foreign judgment in the BC court and then enforce it.

Judgments from any other foreign jurisdictions must be recognized by the BC court first and converted it into BC judgments before they can be enforced here. That involves a more complex process.

How to enforce a non-reciprocating foreign judgement in BC

In general, Canadian courts have adopted a generous and liberal approach to the recognition and enforcement of foreign judgments. This is based on the notion adopted by the Canadian courts that judicial comity, the need to acknowledge and show respect for the legal action of other states, is the underlying principle in recognizing and enforcing foreign court orders.

In a recent Supreme Court of Canada decision, Chevron Corp. v. Yaiguaje, [2015] 3 SCR 69, 2015 SCC 42, which involves the recognition and enforcement of an Ecuadorian court order in Ontario, our highest court says, “legitimate judicial acts should be respected and enforced, not sidetracked or ignored. The goal of modern conflicts systems rests on the principle of comity, which calls for the promotion of order and fairness, an attitude of respect and deference to other states, and a degree of stability and predictability in order to facilitate reciprocity.”

With that in mind, it is fair to say that BC courts would generally recognize a foreign judgment unless great unfairness to the defendant when obtaining that foreign court order can be demonstrated. For example, if the defendant did not have a chance to defend the lawsuit in the foreign court; or if the dispute did not have any connection to the foreign jurisdiction; or the enforcement of such a foreign court order would be contrary to Canadian public policy. Under those circumstances, BC courts would not recognize the foreign judgment. However, unless those exceptional circumstances can be shown, our courts generally would not have much sympathy to judgment debtors if they, through their own conduct and noncompliance, have made themselves liable for a claim. If that’s the case, the judgment debtors will have to answer for their debts in Canada.

To have a non-reciprocating foreign judgment enforced in BC, the first step is to bring a new action at the BC Supreme Court for the purpose of converting the foreign judgment into a BC one under the Court Jurisdiction and Proceedings Transfer Act. Procedurally, the steps to be taken in such an action are same as bringing any action in the BC Supreme Court. The Supreme Court Civil Rules applies.

What is also important to remember is that if a foreign judgment is written in a foreign language, those documents must be translated into English by a certified translator.

In BC, a judgment creditor has 10 years since the day the foreign judgment is rendered to have to have it enforced in BC.

Author: Nerissa Yan