In the recent decision of the Ontario Superior Court of Justice (“ONSC”), Roger Vanden Berghe NV v. Merinos Carpet Inc., 2023 ONSC 6728, the ONSC provided a helpful guide on some of the key principles applicable to cases involving the recognition and enforcement in Ontario of judgments from other countries.
In this case the ONSC granted an application for the recognition and enforcement of a judgment from a court in Belgium; the Ghent Business Court, Kortrijk Division, First Chamber (the “Judgment”). The underlying dispute that was adjudicated in Belgium was with respect to unpaid invoices for textile orders.
The respondent did not respond to the proceeding in Belgium, although summoned by a Writ of Summons. The respondent claimed that it was not properly served with the Writ of Summons, and even if it was, one of its representatives would not have been able to attend given the Covid-19 travel restrictions in place at the time. The respondent also claimed it was not aware of the Belgian proceeding.
The ONSC advised of the following general principles applicable to an application for the recognition and enforcement of a foreign judgment:
- Fulfillment of Pre-Existing Obligation: The purpose of such a proceeding is “to allow a pre-existing obligation to be fulfilled” (i.e. to ensure that a debt owed by the defendant is paid).
- No Re-Litigation: The proceeding is based on “the obligation created by the foreign judgment” (i.e. the court is generally not concerned with the substantive or procedural law on which the foreign judgment is based and will not “re-litigate” the underlying proceeding).
- Facilitation: Our court’s role is “not one of substance, but one of facilitation”.
- Generous and Liberal Approach: Canadian courts have a “generous and liberal approach to the recognition and enforcement of foreign money judgments” (i.e. all the enforcing court needs is proof that the judgment (a) was rendered by a court of competent jurisdiction, (b) is final, and (c) is for a definite sum of money).
- Real and Substantial Connection: A foreign court has properly assumed jurisdiction where it had “a real and substantial connection with the litigants or with the subject matter in dispute” or where the traditional bases of jurisdiction were satisfied.
- Defences: Available defences to a recognition and enforcement proceeding are (a) fraud, (b) public policy, and (c) natural justice.
- Default Judgment: the test applicable to recognition and enforcement of default judgments is the same as the test for judgments obtained after trial.
In this case the ONSC found that the Judgment was rendered by a court of competent jurisdiction, is final and is for a definite sum of money, and that the respondent was unable to establish the availability of any defences (in particular, the ONSC did not find that the respondent was not given adequate notice of the Belgian proceeding).
At Gilbertson Davis LLP, our lawyers can assist you, your business, company, partnership or corporation in applying to the court for the recognition and enforcement in Ontario of your judgment obtained in another jurisdiction. Gilbertson Davis LLP lawyers have experience in proceedings involving Recognition and Enforcement of Foreign Judgments, Recognition and Enforcement of International Arbitration Awards, Commercial Litigation, Civil Litigation, Business Torts, and Business Litigation matters and can assist you in resolving your legal issues in a timely and cost-effective manner. Our mission is to provide creative, sensible, cost-effective, long-term resolutions to clients. Please contact Gilbertson Davis LLP to schedule a consultation.
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