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FOREIGN JUDGMENTS - Enforcement - Recognition of judgment of foreign state or territory

Tuesday, July 20, 2021 @ 5:50 AM  


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Appeal by the plaintiffs from a decision of a chambers judge refusing to enforce a German judgment granting the appellants specific performance and ordering the transfer of a BC property from the respondent to the appellants. The parties were all resident in Germany. Relying on the Supreme Court of Canada decision in Duke, the chambers judge ruled that Canadian courts would not enforce a foreign judgment that adjudicated title or interest to land in a foreign jurisdiction. The judge held further that the authority of Duke had not been overtaken by developments in case law from the Supreme Court of Canada, most particularly arising from the Pro Swing case in which the Supreme Court held that Canadian courts could recognize and enforce foreign non‑money judgments provided certain criteria were satisfied.

HELD: Appeal allowed. The Pro Swing decision radically altered the common law principles engaged in the recognition and enforcement of foreign non-money judgments, including foreign in personam orders in the nature of specific performance. Pro Swing assimilated the principles governing recognition and enforcement of money and non-money judgments in light of the considerations of comity, order and fairness. Pro Swing should be taken implicitly to have overruled Duke on the basis that the principles endorsed in Pro Swing would compel a different result if Duke were decided today. The categorical distinction between the enforceability of the different types of orders was no longer good law. In principle, both money and non-money judgments were entitled to recognition and enforcement, subject to special considerations that might apply in one case but not the other. A foreign order for specific performance implicating rights or interests in immovable property that complied with the requirements of Pro Swing was capable of being recognized and enforced in BC. The German order met the requirements set out in Pro Swing for enforcement. The order was made by a court with jurisdictional competence, it was a final order and it was certain. If it were to be enforced, the obligations created by it did not call for interpretation by the enforcing court. It was not necessary that the respondent was present in this jurisdiction before this court could enforce the German judgment, provided that the court was entitled to make an order in her absence that achieved the result of the order, such as by means of a vesting order. Providing enforcement of the German order by means of a vesting order was an appropriate means of enforcement in this case, particularly in the face of an absent recalcitrant defendant who had refused to comply voluntarily with the order for specific performance. It was consistent with comity, order and fairness that a BC court used its own process to assist the German court.

Lanfer v. Eilers, [2021] B.C.J. No. 1333, British Columbia Court of Appeal, D.C. Harris, G.J. Fitch and P. Abrioux JJ.A., June 18, 2021. Digest No. TLD-July192021004