CHAPTER 8 Recognition and Enforcement of Foreign Judgments

• Date: 07 April 2025

193

CHA PTER 8

RECOGNITION AND

ENFORCEMENT OF

FOREIGN JUDGMENTS

A. INTRODUCTION

The third central question in the conf‌lict of laws is whether a court

will recognize and enforce a decision of a court in another jurisdic-

tion. The previous three chapters have focused on the f‌irst central

question, that of jurisdiction. So it may seem odd to now take up the

third question rather than the second. However, as will be developed,

there are strong connections between the question of jurisdiction

and the question of recognition and enforcement. They have more

in common with each other than either does with the second central

question, choice of law. As a result, it makes sense to examine these

topics in this order.

Under the principle of territorial sovereignty, the judgment of a court

has eect only inside the territory within which the court is located.

Consider an Ontario court order requiring a defendant to pay money.

The plainti is entitled to enforce that order against the defendant in

Ontario. For example, the defendant’s assets in Ontario can be seized by

the sheri and sold, and the proceeds paid to the plainti. This makes

eminent sense; the order would be of little value otherwise. But that

same order cannot simply be applied in the same way to the defendant’s

assets outside Ontario. If the defendant has assets in Alberta or New

York, the plainti cannot present the Ontario order to the local sheri in

CONFLICT OF LAWS

194

the foreign jurisdiction and expect him or her to act on it. The Ontario

order is not operative beyond Ontario’s borders.

Modern commerce makes it imperative that these territorial limit-

ations are overcome. While a defendant may have sucient assets to

satisfy a plainti’s claim, those assets may be spread across several dif-

ferent jurisdictions. It would be very inecient to require the plainti

to bring separate substantive proceedings against the defendant in each

such jurisdiction. In addition, it is increasingly easy for certain types of

assets to be moved across borders. Even if the defendant has sucient

assets in the forum where the dispute is to be resolved, there is often

no guarantee those assets will remain there at the conclusion of the

litigation. It is therefore important that the eventual judgment be useful

outside the forum.

Similar considerations arise for injunctive relief. If the plainti seeks

an injunction against a defendant who is not present in the forum and

who has no assets there, then the injunction could end up being of little

value. The plainti will not be able, in the forum, to enforce the injunc-

tion against either the person or the assets of the defendant. As with

money judgments, it is important to consider whether the judgment

could become enforceable beyond the forum.

The main way the limitations of territorial sovereignty have been

overcome is through jurisdictions accepting that when certain condi-

tions are satisf‌ied they will recognize and enforce the judgment of a

foreign court. This is a sovereignty compromise: a foreign court’s order

ends up having an extraterritorial eect, but each jurisdiction gets to

establish its own conditions for when this will occur.

At the outset it is important to distinguish between recognition and

enforcement, even though the two terms are often loosely used inter-

changeably. Recognition is the f‌irst step: it is the process by which the

court accepts the validity of the decision on its merits and that it has

resolved the issue between the parties. Enforcement is the second step: it

involves lending assistance to a party to follow through on the judgment.

The seizure and sale process, for example, is an enforcement mechanism.

A decision must be recognized before it can be enforced. However, not all

decisions need to be enforced: recognition is often enough. Sometimes

the defendant might pay the plainti once the decision is recognized in

a jurisdiction where he or she has assets, so the plainti does not need

to move on to enforcement. In quite a dierent type of case, the defend-

ant might be seeking to have the court recognize a foreign judgment in

which the plainti’s claim was dismissed. The defendant seeks to use

this earlier judgment as the basis for a defence of res judicata or issue

estoppel. If the court recognizes the foreign judgment, the defendant

Recognition an d Enforcement of Foreign Judgments 195

does not need to have it enforced: he or she simply relies on it in support

of these defences.1

B. THE TEST FOR RECOGNITION AND

ENFORCEMENT

The common law gives the plainti who has obtained a foreign judg-

ment two options. First, the plainti can bring an action on the foreign

judgment. While this is a separate action, requiring all the procedural

steps of an action, it is based not on the original claim the plainti had

pursued against the defendant but rather on the obligation created by

the foreign judgment, typically a debt obligation.2 This remains the stan-

dard common law method for having a foreign judgment recognized and

enforced.3 The enforcement proceedings typically follow an accelerated

procedure available for cases where facts are not in dispute, such as an

application or a motion for summary judgment.4

There had been some debate as to whether an action could be

brought on a foreign judgment that was itself the result of an action

brought on an earlier foreign judgment. For example, a plainti might

obtain a judgment in Germany. The plainti could then sue in Ontario

on the German judgment, and if successful obtain an Ontario judgment.

Could the plainti then sue in Alberta on the Ontario judgment rather

than the original German judgment?5 One reason for doing so might be

to avoid a limitation period applicable in an action on the German judg-

ment but not on the Ontario judgment. In HMB Holdings Ltd v Antigua

and Barbuda (Attorney General) the Court of Appeal for Ontario held that

1 See, for example, Armoyan v Armoyan, 2013 NSCA 99 at para 355. See also the

use made of a foreign judgment by the plainti in Monteiro v Toronto Dominion

Bank (2008), 89 OR (3d) 565 (CA).

2 See Schibsby v Westenholz (1870), LR 6 QB 155. See also Yaiguaje v Chevron Corp,

2018 ONCA 472 at para 49.

3 Nouvion v Freeman (1889), 15 App Cas 1 (HL) [Nouvion], relying on Williams v

Jones (1845), 13 M & W 628 at 633.

4 In Ontario, see Rules of Civil Procedure, RRO 1990, Reg 194, rr 14.05 and 20

[Ontario Rules]. While some cases may be suciently complex that a summary

process is not appropriate, the suggestion, seen in decisions such as Noël et Asso-

ciés, SENCRL v Sincennes, 2012 ONSC 3770, that as a matter of law recognition

and enforcement must be by way of action and not application cannot be correct.

See Dead End Survival, LLC v Marhasin, 2019 ONSC 3569 at para 3 [Dead End

Survival]; JGB Collateral, LLC v Rochon, 2020 ONSC 1732 at paras 17–22.

5 A phenomenon referred to as a “ricochet judgment” or “derivative judgment”.