Can A Foreign Legal Order Be Recognized in Canada?
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One would think that, when a case is decided, the decision must carry forward no matter where the parties to that matter may reside. But not a lot of people know that there is a body of laws dedicated to determining whether a foreign judgment is enforced in Canada. In some instances, decisions made in foreign jurisdictions have no application or weight in Canada.

What is private international law?

The rules surrounding the enforcement of foreign judgements in Canada are called private international law. Private international law is a branch of public law that concerns the regulation of relations between private parties across national boundaries. It is distinct from public international law, which instead concerns relations between states and other entities. Because private international law regulates relations between individuals or organizations and not countries themselves, it is sometimes called a “conflict of laws.”

Private international law determines the application of decisions across family law, corporate and commercial lawreal estate lawemployment lawwills and estates law, and more. The purpose of this law is to ensure consistency in how foreign judgments are dealt with in Canada.

How to determine whether a foreign judgment should be enforced

As is common in any branch of law, a procedure exists to help courts determine whether a foreign judgment should be enforced in Canada. It is as follows:

  1. First, there must be a conflict between foreign judgment and Canadian law. For example, in Cariello v Perella, at issue was whether a retired priest could appoint a power of attorney to friends in Canada when an interim guardian had already been appointed by an Italian court.
  2. Second, the problem must be distinguished as one of the following:
    1. Conflict of Jurisdiction – The conflict concerns whether Canadian courts are competent to make a decision on the matter.
    2. Conflict of Laws – The conflict concerns which law should apply to an international situation.
    3. Conflict of Authority – The conflict concerns the recognition of laws or decisions made by foreign bodies.
  3. What are the factors that are connecting the matter to either Canada or the foreign decision, law, or authority? Connecting factors include each party’s domicile, the residence of the parties, the location of the property in issue, the location an offence or infraction was committed, the nationality of the parties, and what the parties chose themselves in the contract.

Key terminology in private international law

In private international law, two connecting factors can prove to be crucial. Those are the domicile of the parties and the residence of the parties. Although there are similarities between the two concepts, they are different in distinct ways.

Domicile. A domicile is a place where a person permanently lives or where a corporation was incorporated. In Quebec, a corporation’s domicile is wherever the corporation’s head office is located. In the case of a person, their domicile is wherever they intend to be permanently situated. In layman’s terms, a domicile is one’s “place of origin” or “home base.” Everyone starts with their place of birth as their domicile. This is retained until a person chooses to make another place their domicile by moving to another country with plans to remain there indefinitely. Even if a person leaves their domicile country or province for long periods of time, it cannot be lost.

Residence. Contrasted to the domicile, the residence is the place where a person habitually resides. There is no need to prove intention to reside in one place indefinitely. Indicia of residence include provincial health insurance, where someone declares taxes, and in which province a person works. If a person resides across multiple properties, such as a cottage, the residence is where they reside stably and constantly compared to the others.

Exceptions to the Application of Private International Law

Although there are many areas of law to which private international law applies, other areas of law involve different procedures. A reason for a lot of this conflict is the need to respect the decisions of other nations, which are best situated to determine what is in their own best interests when they are parties to the matter. For certain areas of law where the state is a party, it is not possible to enforce those decisions within Canada. Consider the following:

Criminal Law

These laws involve a sanction, for a violation of a duty to the state. Generally, private international law will not apply except in two circumstances: extradition treaties and specific provisions of the Criminal Code of Canada.

Fiscal Law

A fiscal law is any law that imposes a non-contractual pecuniary obligation in favour of the state. This includes federal or provincial income tax, provincial or federal inheritance tax, provincial retail sales taxes, municipal taxes, and indirect taxes (such as customs duties, stamp duties, etc.).

Public Law

Public law tends to be concerned with the nature of a transaction between the state and an individual.

Are there instances where Canada might not enforce a foreign judgment?

It is sometimes the case that there are other reasons, outside the aforementioned exceptions, for which a Canadian court may not want to enforce a foreign judgment. One of those reasons is public policy.

Public policy plays an important role in private international law. On the basis of public policy, a Canadian court is able to set aside a foreign decision that is manifestly incompatible with the fundamental concepts underpinning the Canadian legal system.

Contact the Litigation Lawyers at Baker & Company in Toronto For Assistance with Enforcing a Foreign Judgment in Ontario 

If you are involved in a cross-border or international dispute and have received a judgment in a foreign jurisdiction that you wish to have enforced in Ontario or elsewhere in Canada, contact the highly skilled litigation lawyers at Baker & Company. We rely on more than 30 years of litigation experience to ensure that our clients’ rights are protected. Call us at 416-777-0100 or contact us online for a consultation.

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