So you won your court case outside Ontario. Congratulations! But now what?

 

While a decision or an order from a foreign court may be recognized and enforced in Ontario, you’ll have to undertake a few practical steps.

 

1. Evaluate Ontario Assets 

 

Consider what you know about your judgment debtor in general, and narrow in on what they own. Where do they work? Where are their bank accounts? Do they own assets themselves, or through a corporation, and, if so, what kind? 

 

The answers to these initial questions will help you determine whether Ontario enforcement will be financially worthwhile. Per the Supreme Court of Canada’s decision in Chevron Corp. v. Yaiguaje, Ontario assets are not necessarily a prerequisite to foreign judgment recognition. However, if there are no assets against which to enforce your judgment, there may be limited practical value in undertaking the process, depending on the circumstances. 

 

2. Distinguish Between Ontario Recognition and Enforcement

 

Judgment recognition means that a foreign or out-of-province judgment has been accepted as valid and binding within Ontario; whereas judgment enforcement is the actual debt collection via local Ontario court procedures, such as the seizure and sale of assets, garnishment, examinations and contempt proceedings. These are distinct processes. 

 

In Canada, both recognition and enforcement of foreign judgments fall under provincial jurisdiction. As such, in Ontario, legal actions to these ends are brought before the Ontario Superior Court. While the Ontario Reciprocal Enforcement of Judgments Act provides streamlined, cost-efficient judgment registration processes that may allow creditors to commence court proceedings; this path is limited to judgments from other Canadian provinces (except Quebec). 

 

Certain qualifying United Kingdom judgments, may, notably, be registered under the Reciprocal Enforcement of Judgments (U.K.) Act.

 

3. Determine Whether the Judgment Will Be Recognized

 

A foreign judgment creditor will generally be required to meet the common law test for recognizing foreign judgments in Ontario. This tests asks whether: 

Note that a pending appeal before the foreign court does not necessarily prevent recognition of the original judgment in Ontario. An Ontario court may nevertheless grant a stay of enforcement, temporarily preventing collection steps while the foreign appeal proceeds.

 

Whether the foreign court’s laws permitted that court to take jurisdiction of the action is, notably, not relevant to the Ontario court’s analysis. 

 

The foreign court will be deemed of “competent jurisdiction” where:

  • The defendant was physically present in this jurisdiction at the time of the action;
  • The defendant otherwise “attorned” (i.e., accepted the court’s jurisdiction, either voluntarily or through their conduct); or 
  • There is a “real and substantial connection” between the foreign court, or the foreign state, and the defendant. 

The Ontario court will generally recognize the foreign judgment, subject to the limited challenges available for foreign judgment debtors. 

 

4. Prepare for Challenges 

 

Even where a foreign judgment is final and the foreign court had proper jurisdiction, the judgment debtor may oppose enforcement on grounds of public policy, fraud, or a denial of natural justice. Depending on the nature of the judgment, the debtor may also argue that it is penal in nature, concerns taxation or other matters of public law, or conflicts with an earlier domestic judgment. 

 

5. Check the Deadline

 

In Independence Plaza 1 Associates, L.L.C. v. Figliolini, the Ontario Court of Appeal held that the basic two-year limitation period under the Limitations Act applies to a common-law proceeding on a foreign judgment. The limitation period begins to run when the time to appeal the foreign judgment has expired or, if an appeal is pursued, on the date of the appeal decision.  

 

6. Gather Your Records

 

An Ontario lawyer assessing your options for foreign judgment recognition and enforcement will likely require:

  • The foreign judgment in question;
  • Originating documents and proof(s) of service;
  • Records of any appeal, applications to set aside the judgment and/or stays;
  • A calculation of the unpaid balance, including interest and any payments received;
  • The judgment debtor’s full legal name and known address(es); and
  • Any available information about the debtor’s Ontario assets, employment and banking.

Documents in another language may require certified translations. Depending on the issues raised, evidence explaining the foreign law or the judgment’s legal effect may also be needed.

 

7. Plan Your Collection Strategy 

 

Depending on the judgment debtor’s means available, the available enforcement tools may include:

  • Garnishment: Seeking payment from a third party that owes money to the debtor, such as a bank or employer.
  • A writ of seizure and sale: Enforcing the judgment amount against eligible property in the debtor’s name.
  • An examination hearing: Requiring the debtor to answer questions about their income, property, debts and financial transactions before a judge.

Each remedy has its requirements and limits. It may be advisable to seek settlement on a payment plan. 

 

Ultimately, your strategy should reflect the likely return from enforcement, the cost and the time involved.

 

8. Get Help From Abroad

 

Living outside of Canada does not mean you must navigate Ontario enforcement alone. An Ontario lawyer can help you assess recognition, coordinate with counsel in the original jurisdiction and pursue appropriate local collection steps from abroad.

 

Before spending more money, obtain an assessment of the judgment, the deadline and the debtor’s likely sources of payment.

 

I assist clients in Ontario and abroad with debt collection and judgment enforcement, including assessing options for enforcing foreign judgments in Ontario.

 

Visit my website to learn more. 

 

Note: This article provides general information about Ontario law and is not legal advice.