Registration of Foreign Judgments in Saskatchewan

Litigants who obtain judgments in foreign jurisdictions are often faced with the practical realities posed by judgment debtors with assets located in Canada.

The recognition and enforcement of foreign judgments in Canada raises complex legal questions. There is significant diversity in legal systems found around the world. Different legal systems may recognize different causes of action than those recognized by Canadian courts. The processes employed within foreign legal systems may raise important concerns around fairness and due process. These concerns may at times be in tension with an interest in recognizing and respecting judgments pronounced by foreign courts.

There is no uniform approach to the recognition of foreign judgments in Canada. While some provinces – like Saskatchewan – have enacted statutes that govern the recognition of foreign judgments, other provinces are governed by the common law.

The Enforcement of Foreign Judgments Act

In Saskatchewan, the recognition and enforcement of foreign judgments is governed by The Enforcement of Foreign Judgments Act, SS 2005, c E-9.121 [EFJA]. The EFJA “constitutes a complete code” (Yapi ve Kredi Bankasi Anonim Sirketi v Arslan, 2023 SKKB 126 at para 12 [Arslan KB]). Enacted in 2005 and based on the model statute crafted by the Uniform Law Conference of Canada, the EFJA codifies “central elements of the common law rules” concerning foreign judgment enforcement: Double Diamond Distribution Ltd. v Garman Turner Gordon LLP, 2021 SKCA 61 at para 71 [Double Diamond].

Judgment creditors are not entitled to register foreign judgments in Saskatchewan as of right. Rather, a judgment creditor must satisfy certain procedural and substantive requirements in order for a foreign judgment to be enforceable in Saskatchewan.

Registration of a foreign judgment in Saskatchewan

A judgment creditor seeking to enforce a foreign judgment in Saskatchewan must apply to the Court of King’s Bench for an Order registering the foreign judgment in Saskatchewan. Once a foreign judgment has been registered, it is enforceable as if it were a judgment of the Court of King’s Bench for Saskatchewan: EFJA, s 14(1).

Section 2 of the EFJA defines a “foreign judgment” as follows:

“foreign judgment” means a final decision made in a civil proceeding by a court of a foreign state, rendered by means of a judgment, order, decree or similar instrument in accordance with the laws of that state, and includes a final decision made by an adjudicative body other than a court if the enforcing court is satisfied that the adjudicative body is the body that determines disputes of the kind in question in that state;

Central to the definition of a “foreign judgment” is the requirement that the decision at issue be “a final decision made in a civil proceeding”. See Arslan v Yapi ve Kredi Bankasi Anonim Sirketi, 2024 SKCA 68 at para 9 [Arslan CA].

Section 12(1) of the EFJA provides that “[a] foreign judgment that is enforceable pursuant to this Act may be registered pursuant to this Part”. Accordingly, the issue of whether a foreign judgment may be registered is premised on a determination that the foreign judgment is enforceable pursuant to the EFJA.

A judgment creditor seeking to register a foreign judgment bears the onus of demonstrating that that the statutory requirements for registration imposed by the EFJA have been satisfied: Arslan KB at para 20.

A judgment creditor is required to provide the judgment debtor with a notice of intention to register the foreign judgment in Saskatchewan: EFJA, s 8; Double Diamond at para 24. The notice provided to the judgment debtor must indicate which parts of the foreign judgment that the judgment creditor seeks to register in Saskatchewan. The notice must also outline the grounds that the judgment creditor is relying on to suggest that the foreign court had the jurisdiction to make the foreign judgment. The EFJA recognizes specific situations in which a foreign court has jurisdiction in a civil proceeding: see EFJA, s 8. Among these situations is where the judgment debtor submitted to the jurisdiction of the Court or was resident in the foreign jurisdiction, or where there was a real and substantial connection between the foreign jurisdiction and the facts on which the proceeding was based: see EFJA, ss 8–9.

In addition to filing a copy of the notice of intention that was provided to the judgment debtor with the Court, a judgment creditor is also required to file a certified copy of the foreign judgment: EFJA, s 12(4). If the foreign judgment was not rendered in English or French, a certified translation must be filed with the Court: EFJA, s 12(4)(d). If the judgment creditor is of the view that the foreign judgment must be modified in order to render it enforceable in Saskatchewan, an application to the Court may be made for that purpose: EFJA, s 12(4)(c).

Reasons to refuse enforcement of a foreign judgment in Saskatchewan

When determining whether a foreign judgment may be registered in Saskatchewan pursuant to the EFJA, the Court “does not have broad-based authority to inquire into the details of the substantive and procedural law on which the judgment is based” (Double Diamond at para 36). While the Court’s ability to consider the substance and procedure behind the foreign judgment is limited, s. 4 of the EFJA does set out several reasons why the enforcement of a foreign judgment may be refused. These reasons are as follows:

• The foreign court lacked jurisdiction over the judgment debtor or the subject matter at issue;
• The foreign judgment has been satisfied;
• The foreign judgment is not enforceable in the foreign jurisdiction, has been appealed, or the time for appealing the foreign judgment has not expired;
• The judgment debtor was not lawfully served with the document commencing the foreign court proceeding and the foreign judgment was obtained in default;
• The foreign judgment was obtained by fraud;
• The foreign judgment was rendered in a proceeding that was conducted contrary to the principles of procedural fairness and natural justice;
• The foreign judgment is manifestly contrary to public policy in Saskatchewan; or
• A civil proceeding concerning the same facts and having the same purpose as the foreign proceedings that resulted in the foreign judgment:
  • Was pending before a Saskatchewan court prior to the foreign proceeding having been commence;
  • Had resulted in a judgment or order made by a Saskatchewan court; or
  • Had resulted in a judgment or order made by another foreign court that could be registered and enforced in Saskatchewan.

Once a judgment creditor has demonstrated that the statutory requirements for the registration of a foreign judgment have been met, the judgment is enforceable in Saskatchewan unless the judgment debtor “establishes one of the statutory reasons for refusal to register” (Arlsan KB at para 21). A judgment debtor resisting the registration of a foreign judgment bears “the onus of proving, on a balance of probabilities, one of the reasons for refusal to register” (Arslan KB at para 21, citing Beals v Saldanha, 2003 SCC 72 at para 61, [2003] 3 SCR 416; Britton v Simon (Estate), 2016 SKQB 30 at paras 27–28, 395 DLR (4th) 139 [Britton]; and Double Diamond at paras 79–88). While “[t]he nature of the evidence that is required to meet that onus will, of course, depend on the circumstances”, expert evidence on foreign law is typically required: Arslan CA at para 18. Foreign law must be proven through expert evidence: see Arslan CA at para 64.

The EFJA also contains provisions aimed at limiting the enforcement of monetary damages awards in certain situations. These situations include where the “foreign judgment includes an amount added to compensatory damages as punitive or multiple damages or for other non-compensatory purposes” (EFJA, s 6(1)), or where the compensatory damages awarded by the foreign court were “excessive in the circumstances” (EFJA, s 6(2)). The EFJA also contains provisions aimed at modifying non-monetary awards when necessary so that they may be enforced in Saskatchewan: EFJA, s 7.

Conclusion

The foreign judgment registration regime imposed by the EFJA reflects a recognition that a foreign judgment is a pre-existing obligation of a judgment debtor. As the Court noted in Britton at para 22, “[t]he ability to enforce foreign judgments in the location where the judgment debtor resides and has assets … has long been an important part of our legal system”. The recognition of foreign judgments also reflects an understanding that “[l]egitimate judicial acts should be respected and enforced, not sidetracked or ignored” (Chevron Corp. v Yaiguaje, 2015 SCC 42 at para 53, [2015] 3 SCR 69).

McDougall Gauley LLP has experience acting in matters concerning the application of the EFJA and the recognition and enforcement of foreign judgments in Saskatchewan. To learn more, please contact a member of our Litigation, Dispute Resolution & Appeals or Insolvency & Restructuring teams.