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Supreme Court of Canada Recognizes the Right to Enforce a Foreign Non Monetary Judgment
In a recent opinion from the Supreme Court of Canada, a consent decree and contempt of court order, issued by a U.S. District Court, were rendered unenforceable in Ontario. However, what is most significant about the decision is that the Court held that traditional common law rules should be changed to allow for the recognition and enforcement of foreign non-monetary judgments. This is the first Supreme Court of Canada decision that explicitly sets out a test allowing for a foreign non-monetary judgment to be enforced under the appropriate circumstances. Although the Court felt the immediate action did not meet the aforesaid test, the decision is a landmark departure from the common law, and by virtue, the Court’s previous opinions on the matter.
To begin with, recognition and enforcement of foreign judgments are governed by the rules of comity. Under comity, for a foreign judgment, monetary or non-monetary, to be recognized and enforced, the following elements must be present:
- Judgment must have been rendered by a Court of competent jurisdiction;
- The judgment must have been final;
- The judgment must be of a nature that the principles of comity require the recognizing Court to enforce it.
In the immediate case, the Court stated the consent decree and contempt order were unenforceable for a couple of reasons. First, the Court labeled the contempt order as “quasi-criminal” in nature. As such, the Canadian Court will not enforce a foreign penal order. The Court further held that when interpreting the law, the receiving Court must ensure that no conflict arises as a result of the enforcement judgment. In the instant case, contempt orders are approached differently in the U.S. and Canada. Thus, the Court felt there was a good chance for a conflict to arise.
Next, to be effective, a non-monetary foreign order such as a consent decree or a contempt order, must be unambiguous, specific and not offend notions of territoriality. Here, the Court held the consent decree and contempt order were ambiguous, unspecific and offended notions of territoriality. Moreover, the Court found that enforcing a U.S. contempt order outside the U.S., would offend notions of territoriality, as comity alone is not a substitute for lacking global trademark protection.
Finally, the Court must be convinced that enforcing the non-monetary foreign judgment is the most appropriate means of accomplishing the issuing Court’s purpose. In the instant case, the Court was unsure if recognizing and enforcing the judgment was appropriate amid the cache of measures that could have alternatively been employed; such as evidence via Letters of rogatory. Thus, if the Court is concerned that pursuing a specific action is judicially uneconomical, the litigant has the burden of convincing the Court that going forward with the matter is prudent. Finally, the Court briefly addresses “quasi-constitutional” privacy issues that could arise from disclosing protected personal information.
For a copy of the decision, visit: