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

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enforcement of foreign judgments generally, the Supreme Court of Canada has since held that
the “real and substantial connection” test also applies to judgments from outside Canada. 9
The Supreme Court then adopted a new test for the enforcement of foreign
judgments and held that a foreign judgment could be enforced in Canada, provided that there was
a “real and substantial connection” between the original court and: (i) the defendant; (ii) the
cause of action, or (iii) the subject matter of the action. The Supreme Court of Canada did not
elaborate on the nature of the real and substantial connection test, beyond observing that Alberta
had a “real and substantial connection” with respect to law suits concerning land in Alberta and
left it open to future courts to develop the list of “connecting” factors.
In light of Morguard, Canadian courts will recognize a foreign judgment where
the foreign court had jurisdiction according to Canada’s real and substantial connection test. The
initially counter-intuitive corollary of this is that the Canadian court will recognize the
jurisdiction of the foreign court based on Canadian principles of jurisdiction and not based on the
foreign court’s principles of jurisdiction. Thus, where the foreign court had jurisdiction under
Canadian principles, its judgment will be recognized even if the foreign court did not have
jurisdiction under its own law. This is because the Canadian court will never inquire into the
legitimacy of the exercise of jurisdiction by the foreign court under its own laws. Any
contestation of that court’s jurisdiction under foreign law must be raised in the foreign court, not
in a Canadian court. 10
9 Beals v. Saldhanha, [2003] 3 S.C.R. 416 at para. 19
10 Moses v. Shore Boat Builders Ltd. (1993), 83 B.C.L.R. (2d) 177 (B.C.C.A.) leave to appeal to S.C.C. refused, [1993]
S.C.C.A. No. 496