Given the increasing amount of cross-border economic activity in the age of globalization, it is not surprising that the victorious litigant often finds that the debtor has no assets within the jurisdiction capable of satisfying a judgment. Fortunately, many jurisdictions have reciprocal enforcement procedures in place which allow judgments obtained in one jurisdiction to be enforced against assets located in another. British Columbia is one of those jurisdictions.
Historically, the process for enforcing foreign judgments in British Columbia could be cumbersome, time-consuming, and expensive. In recent years, however, a series of decisions of the Supreme Court of Canada emphasizing the need for inter-jurisdictional co-operation, coupled with the enactment of model legislation in most Canadian provinces, has considerably streamlined the process in many cases. This article will summarize the different options available to enforce foreign judgments in British Columbia.
If the judgment is from another Canadian province, it may be registered as a judgment of the Supreme Court of British Columbia pursuant to the Enforcement of Canadian Judgments and Decrees Act (the “ECJDA”). Provided the judgment meets the criteria set out in the Act, registration is accomplished by simply filing a certified copy of the original judgment in the Registry of the Supreme Court. It is then assigned a Supreme Court file number and enforcement proceedings can be taken on it in the usual course, using the available mechanisms under the Supreme Court Civil Rules and the Court Order Enforcement Act.
The key eligibility criteria under the ECJDA are:
- Was the order made in a civil proceeding by Court or administrative tribunal of a province or territory other than British Columbia?
- If the order was issued by an administrative tribunal, does it provide for relief other than the payment of money? (Such orders cannot be enforced using this method; however, orders may be registered and enforced to the extent that they require the payment of money and not with respect to the other relief.)
- If the order requires the payment of money, is the judgment final? (The interesting question of whether ‘final’ means simply ‘not interim or interlocutory’ or whether it requires that any appeal periods have expired does not appear, as yet, to have been judicially considered in British Columbia.)
While the enforcing party is not required to give the debtor notice of the registration of a judgment under the ECJDA before taking steps to enforce it, if the judgment was obtained ex parte (without notice) in the other province, the enforcing party is required to seek directions from the Supreme Court with respect to its enforcement before any steps can be taken. Note that the British Columbia court will generally not look behind the judgment from the other province – if the debtor takes issue with the judgment or how it was obtained, their remedy is generally confined to challenging the judgment in the originating jurisdiction.
What if the judgment does not meet the ECJDA criteria or is from a jurisdiction outside Canada? The Court Order Enforcement Act (the “COEA”) allows for the reciprocal enforcement of court orders in circumstances not covered by the ECJDA, again provided certain criteria are met. The most important of these is that the judgment must be from a ‘reciprocating state’. Reciprocating states are set out by regulation and include all Canadian provinces and territories except Quebec, all of the Australian states, certain states in the United States of America, Germany, and Austria. (Judgments from the United Kingdom are enforceable under a separate convention.)
Provided that the judgment was made by a court in a reciprocating state, and provided that it is for the payment of money only (excluding payments for family maintenance or support), it may be registered and enforced as a judgment of the British Columbia Supreme Court. The application for registration must be supported by a certificate issued by the originating court in the prescribed form, as well as an affidavit deposing as to the service of the originating process and confirming that the time for any appeal of the judgment has expired (or any appeals have been disposed of). If the debtor was personally served with the originating action, or otherwise appeared and defended the originating proceeding, they do not need to be given notice of the application to register the foreign judgment in British Columbia. In all other cases, notice must be given to the debtor.
Unlike the process under the ECJDA, the debtor may challenge the registration of the foreign judgment on a number of grounds, including a lack of jurisdiction or due process in the originating court, fraud on the originating court, public policy reasons for declining to enforce the foreign judgment in British Columbia, a pending appeal, or a good defence to an action brought on the judgment.
Lastly, if neither the ECJDA nor the COEA procedures are available, the judgment creditor may simply sue on the judgment in British Columbia by filing a Notice of Civil Claim and serving it on the debtor in accordance with the Supreme Court Civil Rules. The judgment of the foreign court essentially becomes the cause of action. This is the most expensive and most time-consuming option, as the action must be prosecuted to judgment like any other civil proceeding (although in many cases it may be suitable for summary trial), and the debtor can raise any number of defences to the enforcement of the foreign action.
Although some litigants have creatively attempted to take advantage of the summary procedures in the COEA by having their foreign judgment registered first in a reciprocating state and then attempting to register that judgment in British Columbia using the COEA provisions, the British Columbia Court of Appeal disapproved of this practice in Owen v. Rocketinfo, Inc., 2008 BCCA 502. In that case, a judgment from Nevada (a non-reciprocating state) was registered in California (a reciprocating state) and then sought to be registered in British Columbia under the COEA. The Court of Appeal held that this was not an appropriate use of the ‘reciprocating state’ provisions.
Therefore, in all cases involving judgments from non-reciprocating states, the correct (albeit more time-consuming and expensive) procedure is to sue on the judgment. Fortunately, a much more streamlined procedure is available in many cases, which will assist litigants in enforcing their rights.
If you require further assistance, please contact our firm.