Recognition and Enforcement of Foreign Judgments in ... - McMillan

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-16- secondary sources. That said, if there were a particularly contentious point of foreign law, introducing evidence of it would be advisable. (d) Inter-Provincial or International Nature of the Case The Court of Appeal recognized that considerations underlying rules of comity apply with greater force between units of a federal state than between different countries. Differential treatment between inter-provincial and international cases was therefore justified. (e) The Involvement of Other Parties to the Suit This is not a separate factor to be considered in all cases but remains relevant to the real and substantial connection test in cases where it may serve as a possible connecting factor that justifies assuming or declining jurisdiction. The tourist cases provide a useful indicator of how the real and substantial connection test is applied. Tourist cases typically involve residents of Canada who are injured on vacation elsewhere. In circumstances where the Canadian resident sues a party with whom he entered into a contract in Canada, courts have accepted jurisdiction. 34 Where, however, the Canadian tourist entered the contract with a foreign service provider in the foreign country, courts have declined jurisdiction. 35 In certain cases, there may be some ambiguity about where the contract was entered into. In those cases, where the foreign entity has conducted marketing 34 Van Breda v. Village Resorts Ltd., [2010] O.J. No. 402 (C.A.) 35 Lemmex v. Bernard (2002), 213 D.L.R. (4th) 627 (Ont. C.A.); Leufkens v. Alba Tours International Inc. (2001), 213 D.L.R. (4th) 614 (Ont. C.A.)
-17- or promotional activities in Ontario, a real and substantial connection to Ontario has also been found. 36 The potential implications of a forum of necessity doctrine can be seen in a case like Muscutt v. Courcelles. 37 In Muscutt, the plaintiff had been a resident of Ontario. He moved to Alberta to assume a new job. Shortly after he moved to Alberta, he was a passenger in a car which was involved in a serious accident, as a result of which the plaintiff suffered a “spinal process fracture” and was forced to return to Ontario to live with his parents. The Ontario Court of Appeal accepted jurisdiction. While the court did not refer to the forum of necessity doctrine, one cannot help but wonder whether similar sentiments underlay the result of the case. 38 One also wonders whether a Canadian court would recognize and enforce a foreign judgment rendered on a similar basis. In a reciprocal case, considerations such as the difficulty of defending the case in the foreign jurisdiction and the comparability of the foreign jurisdiction’s damage awards with Canadian damage awards may become thorny issues. B) Finality The general rule is that a foreign judgment must be one that is final and binding in its own jurisdiction and conclusive on the merits, if it is to be enforced by Canadian courts. 39 A foreign judgment is final if the court issuing the judgment has ceased to have the power to “rescind, vary or re-open” the judgment. If by the procedural law of the foreign 36 Van Breda v. Village Resorts Ltd., [2010] O.J. No. 402 (C.A.) 37 (2002), 213 D.L.R. (4th) 577 (Ont. C.A.) 38 In Muscutt, the Court of Appeal based its decision on the presence of insurance coverage by national carriers. In Van Breda, however, the Court indicated that such insurance coverage should not be taken into account when dealing with jurisdiction. 39 Four Embarcadero Centre Centure v. Kalen (1988), 65 O.R. 551 (Ont. C.A.)
Page 1 and 2: THE RECOGNITION AND ENFORCEMENT OF
Page 3 and 4: The Recognition and Enforcement of
Page 5 and 6: -3- the judgment is actually moneti
Page 7 and 8: British Columbia court would not ha
Page 9 and 10: -7- Thus, for example, in Braintech
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Page 13 and 14: -11- 10. Section 10 merely provides
Page 15 and 16: -13- fairness, not a mechanical cou
Page 17: -15- (b) Willingness to Enforce For
Page 21 and 22: -19- Judgments on the merits includ
Page 23 and 24: -21- unlikely to enforce a foreign
Page 25 and 26: -23- with constitutional protection
Page 27 and 28: -25- PART II - BARS TO ENFORCEMENT
Page 29 and 30: -27- party with a claim for fees fo
Page 31 and 32: -29- Although an older minority jud
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Page 35 and 36: -33- fraud, since to allow such cla
Page 37 and 38: -35- due process. It does not relat
Page 39 and 40: -37- had argued that the public pol
Page 41: -39- court might. Second, the court

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