Introduction to Reciprocal Enforcement of Judgments in Canada
In Canada, the enforcement of foreign judgments constitutionally falls within the jurisdiction of the provinces. As such, the procedures and requirements to obtain recognition of foreign judgments in Canada are not uniform throughout the country. While it has possible to have judgments recognized though the rules of the common law (or those of the Code Civil in Québec), most provinces provide a streamlined path to enforce judgments of jurisdictions that reciprocate the favour. Thus, various provincial laws provide for reciprocal recognition between a Canadian province and specific national, provincial, or state jurisdictions. For example, the province of British Columbia permits the streamlined enforcement of judicial awards stemming from judgments in all Canadian provinces (except Quebec), Austria, Australia, the United Kingdom, Germany, and the American states of Washington, Alaska, California, Colorado, Idaho, and Montana.[i] In the province of Ontario, streamlined enforcement only exists with the United Kingdom, in addition to all provinces other than Quebec.
When a judgment is registered under reciprocal enforcement legislation, the judgment will have the same force and effect as though it had originated in the reciprocating court. However, an interesting question is raised as to the interplay between two reciprocal Canadian provinces and a foreign jurisdiction. How would a court deal with a case where a party recognizes a foreign judgment in one province and then attempts to get that recognition registered in another province? This question was recently answered by the Ontario Superior Court of Justice in the case of H.M.B. Holdings Ltd. v. Antigua and Barbuda, (the Antigua case). This case examined an application in Ontario for an order pursuant to its Reciprocal Enforcement of Judgments Act (the “Act”)[ii] to register an Antiguan judgment recognized in British Columbia (B.C.).
Background of the Antigua case
The Antigua case began with a court order for damages originating in the Caribbean nation of Antigua and Barbuda. H.M.B. was a corporation that owned a 108 acre beachfront resort known as Half Moon Bay Resort on the sunny island of Antigua. In 1995, Hurricane Luis destroyed the resort. H.M.B. sought to redevelop the land, whereas the Antiguan government wanted to expropriate and sell the property. A dispute arose regarding the amount of compensation owed to H.M.B. and H.M.B. successfully sued the government of Antigua, obtaining an award for damages in 2016.[iii]
The Default Judgment in B.C.
The Antiguan government had assets in Ontario, but Ontario’s general limitation period of two years barred the enforcement of the foreign decision. As a result, H.M.B. attempted to recognize the Antiguan decision in B.C., which has a ten-year limitation period, and then use Ontario’s reciprocal enforcement legislation to have the B.C. decision registered in Ontario and enforced against the assets that were there. Consequently, H.M.B started an action in B.C. to obtain the recognition of the Antigua judgment using common law rules, which it obtained easily as the Antiguan judgement did not defend the action. H.M.B. then applied to the Ontario courts to have the B.C. judgment recognizing the foreign decision registered in Ontario under the Act’s reciprocal enforcement mechanism. The Antiguan government motioned to strike H.M.B.’s application.
Positions of the Parties
The Antiguan government took the position that the British Columbia judgment could not be registered in Ontario on two statutory grounds, namely that no judgment could be registered under the Act if:
the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit during the proceedings to the jurisdiction of that court; or if the judgment debtor would have a good defence if an action were brought on the original judgment.[iv]
On the first set of points, the respondent argued that it did not have residency, presence, nor could it be considered to have been carrying on business within B.C. In addition, the Antiguan government pleaded that it did not attorn to the B.C. court.
On the second ground, the respondent took the position that the “original judgment” was that of the Antigua court and that the respondent would have a good defense if the applicant attempted to have that judgment heard in Ontario. Indeed, the Antiguan government could then argue that Ontario’s general two-year limitation period would be fatal to the respondent’s attempt to have the 2016 Antiguan judgment recognized at common law.
Conversely, H.M.B. argued that the Antiguan government’s relationship with four authorized representatives in Vancouver constituted a sufficient presence to ground the jurisdiction of the B.C. court, and hence that of the Ontario court to recognize the B.C. court’s decision. While the original action was proceeding in Antigua, the Antiguan government introduced the Citizenship by Investment program where individuals were encouraged to invest in the country in exchange for citizenship for them and their families. In Canada, this scheme was run through referral fees paid by the government and conducted by four authorized representatives in the Greater Vancouver Area. H.M.B. argued that this was sufficient to consider the Antiguan government as having a physical presence in B.C.
Moreover, H.M.B. took the position that even though the B.C. judgement was derivative of another judgment, the original judgment was nonetheless, for the purposes of the Act, the judgment from B.C. Because it had been obtained less than two years before the application for recognition in Ontario, the limitation defence that could be raised by the respondent would be ineffective.
1) Did the Antiguan government Carry on Business in British Columbia?
According to the Supreme Court of Canada’s decision in Club Resorts Ltd. v. Van Breda, for a party to be considered to be carrying on business in a province they must have a meaningful presence accompanied with a degree of business activity over a sustained period of time.[v] Moreover, carrying on business requires actual, not merely virtual, presence in the jurisdiction, such as maintaining an office or regularly visiting the jurisdiction. Advertisements in an area would be insufficient.[vi]
The Ontario Superior Court ruled that the Antiguan government was not carrying on business as it had no sustained activity in the province and its four representatives were not its agents in the legal sense of the term. Moreover, offering residence status in exchange for investment could not be considered a business activity.
Furthermore, the Antiguan government did not attorn, voluntarily appear or otherwise submit to the jurisdiction of the B.C. Court. In no way did the respondent attempt to defend the action by H.M.B. to enforce Antigua’s award of damages and it could therefore rely on section 3(b) of the Act to defeat H.M.B.’s application.
2) Would the Antiguan government Have a Good Defence if the Action Were Brought on the Original Judgment?
The court considered the meaning of “original judgment” in section 3(g) of the Act. If H.M.B. had sought to have the Antiguan Privy Council decision recognized in Ontario, it is clear that the said decision would have been considered the original judgment. However, here H.M.B. had sought recognition from the B.C. court, and it was now submitting that the latter’s judgment was a derivative or ‘ricochet judgment’ of the Antiguan decision, to be treated on par with the latter.
To aid in interpreting the true meaning of the term “original judgment”, the Ontario court turned to the British Columbia Court of Appel decision in Owen v. Rocketinfo, Inc.[vii] In Owen, a B.C. court rejected the recognition of a Nevada judgement entered as “sister state judgment” in California. B.C. offers, under its Court Order Enforcement Act, reciprocal enforcement of decisions from California, but not of Nevada.
The court in Antigua agreed with the Owen decision, which rejected recognizing derivative decisions stemming from non-reciprocal jurisdictions, stating that:
The problem with including a ricochet judgment within the meaning of an “original judgment” is that, practically speaking, it allows a judgment of a non-reciprocating jurisdiction to be registered in Ontario, which circumvents the general policy of the Ontario law about foreign judgments that would normally apply when a party seeks to enforce a foreign judgment in Ontario from a non-reciprocating jurisdiction. [viii]
Such a concept would result in making every province reciprocal with every nation or state that any one province has reciprocal enforcement with, an interpretation that would be contrary to the goals and policies of the provincial legislatures. Having taken the position that the Antiguan decision was the “original judgment”, the Ontario court decided that the B.C. judgment could not be enforced as the Antiguan government would have a good defence in Ontario if an action were brought on the original judgment, namely that Ontario’s general two-year limitation period would have barred the application to enforce the foreign judgment. Accordingly, the Ontario court approved the respondent’s motion to strike the registration and awarded costs against H.M.B.
The Antigua case illustrates important lessons about the reciprocal recognition of judgments between states or countries. Reciprocal recognition legislation, such as that between Ontario and British Columbia, exists for the purpose of facilitating an expeditious and cost effective registration of awards between similar court systems. It is effectively a rubber stamp that alleviates the burdensome procedures that would otherwise be required, using common law exequatur, to have a judgment enforced. However, the Canadian statutory regime cannot be used by a party with a judgment originating from a non-reciprocating jurisdiction that starts an action to affirm this judgment in a province with laws that are favorable to the party, in order to then use the awarding province’s reciprocity with another province to have it registered there. As seen in this article, such side-stepping around potentially more stringent, or unavailable, recognition procedures will not be possible, at least in the provinces of British Columbia and Ontario.
[i] Court Enforcement Order Act, RSBC 1996, c 78 at Part 2 (Section 37).
[ii] Reciprocal Enforcement of Judgments Act, R.S.O. 1990, c. R.5.
[iii] H.M.B. Holdings Ltd. v. Antigua and Barbuda (Attorney General),  O.J. No. 1133 Paras 28-40, 60.
[iv] Supra note 2 at para 9.
[v] Supra note 2 at para 50.
[vi] Club Resorts Ltd. v Van Breda 2012 SCC 17 at para 87.
[vii] Owen v. Rocketinfo, Inc., 2008 BCCA 502.
[viii] Supra note 2 at para 70.
Article by Martin Aquilina, with the assistance of Alexander Krush.