Judgments from reciprocating states may be recognized in B.C. under the Court Order Enforcement Act (“COEA”), the Canada – United Kingdom Convention for the Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters (“Convention”) and the Supreme Court Rules (‘Rules of Court”).
“Judgment” is defined separately for the purposes of Part 2 of COEA and for the purposes of the Convention. However, the substance of these definitions relate to money judgments or orders.
States which are declared to be reciprocating jurisdictions by COEA in Part 2 (“Part 2 States”), include most Canadian Provinces and Territories; some Australian States and Territories; some U.S. States, mainly along the western seaboard; the Federal Republic of Germany; the Republic of Austria; and in Part 4, the United Kingdom, all as specifically referred to in the attached schedule.
The Rules of Court provide a simplified process for the recognition of judgments from reciprocating jurisdictions under COEA. The process is commenced by originating application viz. by petition or requisition and supported by affidavit.
The supporting affidavit is required to:
(a) exhibit the following documents:
(i) a certified copy of the relevant judgment under the seal of the original court;
(ii) a certificate under s. 29(2) of COEA (where applicable); and
(iii) a certified translation of the said judgment or the said certificate if in a language other than English;
(b) state to the best of the deponent’s information and belief:
(i) the judgment creditor is entitled to enforce the judgment;
(ii) the amount presently owing on the judgment;
(iii) the full name, occupation and usual or last known residence or place of business of both the judgment creditor and the judgment debtor;
(iv) whether the judgment debtor:
(a) was personally served with process of the original court;
(b) was served with the process of the original court other than through personal service, or
(c) participated in the proceeding or otherwise submitted to the jurisdiction of the original court, and
(v) that the judgment is not one which is disqualified from registration under s. 29(6) of COEA or Article II, paragraph 2, or Article IV, paragraph 1 of the Convention.
Notice of an application to register a reciprocally enforceable judgment need not be given to the judgment debtor where such judgment is from the United Kingdom (under Part 4) or where such judgment is from Part 2 States and s. 29(2) of COEA applies (notice of resignation of such judgment should be given to the judgment debtor absent notice of application to register).
The following provisions of COEA are relevant:
(a) with respect to originating applications relating to judgments from Part 2 States, the relevant provisions, in summary, include:
s. 29(1) provides that an application may be made to register in B.C. a judgment given in a court of a reciprocating state, unless: (i) time for enforcement in such reciprocating state has expired, or (ii) 10 years have expired after the date the judgment became enforceable in such reciprocating state.
s. 29(2) an order for registration may be made without notice to any person in which: (a) the judgment debtor (i) was personally served with process in the original action, or (ii) although not personally served appeared, defended, attorned or submitted to the jurisdiction of the original court and (b) under the law in force in the state where the judgment was made (i) the time in which an appeal may be made against the judgment has expired and no appeal is pending or (ii) an appeal has been made and disposed of.
s. 29(3) where s. 29(2) applies, the affidavit in support of the originating application must exhibit a certificate (in the form set out in Schedule 2) from the original court and under its seal and signed by a judge or clerk of that court.
s. 29(6) provides for those matters where an order for registration must not be made, including matters of jurisdiction including conflict of laws, service or proceedings, fraud, public policy and other specified matters.
Where applicable this certificate must be attached as an exhibit to the affidavit in support of the originating application referred to above.
(b) with respect to originating applications relating to judgments from the United Kingdom the relevant Articles of the Convention, in summary, include:
Article II, paragraph 2 the Convention shall not apply to: (a) orders for periodic payment of maintenance, (b) recovery of taxes or charges of a like nature or the recovery of a fine or penalty, (c) judgments given on appeal from tribunals or other than courts, (d) judgments which determine status or legal capacity, custody of guardianship of children, matrimonial matters, succession or administration of estates of deceased persons and management of the affairs of a person who is incapable of doing so.
Article IV, paragraph 1 registration of a judgment shall be refused or set aside if
(a) the judgment (i) has been satisfied, (ii) is not enforceable in the territory of origin or (iii) was obtained by fraud,
(b) the original court is not regarded by the registering court as having jurisdiction,
(c) enforcement of the judgment would be contrary to public policy in the territory of the registering court,
(d) the judgment is a judgment of a country or territory other than the country of origin which has been registered or become enforceable by the original court,
(e) the registering court considers that the judgment debtor is entitled to immunity from the registering court’s jurisdiction or entitled to immunity in the original court and the debtor did not submit to its jurisdiction.
Notwithstanding the above, the B.C. courts may set aside registration or order the stay of enforcement under the Convention (Part 4 of COEA) in the specified circumstances.
A defendant on an action for a foreign judgment, whether or not it is a reciprocally enforceable judgment, may apply for a stay of proceeding on proof that an appeal or proceeding in the nature of an appeal is pending or time for appeal has not expired in the original jurisdiction.
Once a foreign judgment has been registered then the person having the benefit of such registered judgment may enforce it as if it were a judgment of the B.C. court.
The enforcement processes available in B.C. will be the subject of a further article.