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Registering a Foreign Judgment in British Columbia

If a person has recovered judgment in another jurisdiction against a defendant who either resides in BC or has assets in BC, before they can execute against any assets here in BC, it will be necessary to have the foreign judgment registered as a domestic judgment of the Supreme Court of British Columbia.


Is the Judgment from a Reciprocating State?

The first step is to determine whether the jurisdiction where the foreign judgment was granted is a reciprocating state with BC. The procedure for registering a foreign judgment from a reciprocating state is somewhat simpler and quicker. All provinces in Canada except Quebec are reciprocating states with BC. A list of reciprocating states is set out below.


Registration pursuant to the Court Order Enforcement Act

The Court Order Enforcement Act makes provisions for registration and enforcement of foreign money judgements granted by reciprocating states. In British Columbia, the Supreme Court of British Columbia is the only Court with the jurisdiction to hear an application for registration of a foreign judgement. Once the judgement is registered, the foreign judgement may be enforced as though it was a domestic judgement of the Supreme Court of British Columbia.

Not all judgments may be registered. Only judgments whereby a sum of money is made payable can be registered. Judgments for the periodic payment of money such as maintenance or alimony are excluded from the definition of judgments that can be registered.

The application is made by way of a petition and supporting affidavit. A certified copy of the original judgment under seal of the foreign court is required. The petition must set out the amount owing. Interest can be claimed as long as it is allowed for in the foreign judgment. If the judgment is expressed in a foreign currency it will be converted into Canadian currency upon registration.

In certain cases the application to register the foreign judgment can be made without notifying the debtor (this is referred to as an ex parte application). An application can only be made without notice if:

(a) the judgment debtor was personally served in the original proceeding or the judgment debtor appeared, defended or otherwise submitted to the jurisdiction of the original court; and

(b) the appeal period has expired or an appeal has been disposed of in the original court.

If both of these factors are met then the application can be made without notice to the judgment debtor. In all other cases, the judgment debtor must be personally served with the application. Applications without notice require a certificate from the original court in the form set out in the Act.

The judgment debtor has limited grounds on which he/she can challenge the registration. These grounds include: not being served properly in the original court, the original court did not have jurisdiction, an appeal is pending and the foreign judgment is against public policy (see section 29(6) of the Act).


Registration pursuant to the Common Law

If the foreign judgment is not from a reciprocating state, then the judgment creditor has to follow a somewhat different procedure. The end result however will be the same.

Suing on a foreign judgment at common law involves commencing a lawsuit by way of a writ of summons and a statement of claim which must be served on the defendant who can then file a statement of defence and defend the action. At common law however, a foreign judgment will be recognized where the foreign court had jurisdiction, in the eyes of our Courts here in BC, over the parties or the subject matter of the suit and if the foreign judgment was final and conclusive and in the case of a judgment in personam, was for a sum certain in money.

The Supreme Court of Canada held in 2003 that our courts here in Canada should give full faith and credit to the judgments of non-Canadian jurisdictions where the foreign court has appropriately exercised jurisdiction.

The defences which may be raised to an action upon a foreign judgment are limited as follows:

1. the original court had no jurisdiction;
2. the defendant in the original action was not duly served and did not appear or submit to the jurisdiction;
3. the judgment was obtained by fraud;
4. the judgment was not a final judgment;
5. the judgment was not for a sum certain in money;
6. the judgment is for a payment of a penalty or money due under the revenue laws of the foreign country;
7. the judgment has been satisfied or for any other reason is not a subsisting judgment.

If a defendant does file a defence, then a plaintiff may bring on application for a summary trial which is done by way of affidavit evidence before a judge in chambers. This is much quicker than waiting for the actual trial.

The major difference with actions which are brought by common law is that the defendant has to be served as opposed to applications pursuant to the Court Order Enforcement Act which in many cases can be made without notice to the defendant.

List of Reciprocating States (click here)

 

 


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