Enforcing South Carolina Judgment in Ontario Canada
Enforcing Arbitration Awards in Ontario Canada
Enforcing Letters of Request for Judicial Assistance
South Carolina judgments obtained in Federal and State courts may be recognized and enforced in Ontario by a common law action on the South Carolina judgment, if in accordance with the common laws of Ontario (and Canada, if applicable) concerning the recognition and enforcement of foreign judgments.
The Supreme Court of Canada has recently stated in Chevron Corp. v. Yaiguaje that a party seeking enforcement of a judgment in Ontario does not have to show a real and substantial connection between Ontario and the foreign judgment debtor. The court need only be satisfied that there is a real and substantial connection between the foreign court and the defendant when the foreign court issued its judgment. Ontario courts will have jurisdiction over a foreign defendant in an enforcement proceeding as long as the defendant was properly served. It is not even a requirement that the defendant have assets in Ontario prior to the commencement of the enforcement proceeding.
The enforceability of South Carolina money judgments, South Carolina declaratory judgments and South Carolina injunctions and other urgent equitable relief will each be considered on a case-by-case basis.
Enforcing South Carolina Injunction and Non-Monetary Judgment in Ontario
The Courts in Ontario may in the required circumstances recognize and enforce South Carolina equitable orders such as injunctions (not just money judgments). They may give effect to South Carolina world-wide injunctions.
The following factors are considered in determining recognition and enforceability of a South Carolina injunction: (a) are the terms of the order clear and specific enough to ensure that the defendant will know what is expected ; (b) is the order limited in its scope and did the originating court retain the power to issue further orders; (c) is the enforcement the least burdensome remedy for the Canadian justice system; (d) is the Canadian litigant exposed to unforeseen obligations; (e) are any third parties affected by the order; and (f) will the use of judicial resources be consistent with what would be allowed for domestic litigants.
Such factors are in addition to the usual considerations of the courts in Ontario when asked to recognize a foreign judgment.
Dealing with Counterclaims Brought in Ontario
Judgment debtors may attempt to advance a counterclaim in response to a recognition and enforcement action brought in Ontario. Our firm has experience with both advancing and defending against counterclaims by Ontario judgment debtors. For example, our firm recently acted for the Plaintiff, a U.S. judgment debtor, on a successful motion to dismiss a counterclaim brought to an Ontario judgment creditor – see the decision here.
Identifying and Locating Assets to Satisfy Judgment
Recognition of a South Carolina Judgment in Ontario is only half the battle. We are experienced in enforcing judgments in Ontario, including by determining whether or not an Ontario judgment debtor has assets, the location of assets, whether they have been fraudulently conveyed or hidden, or dealt with by the debtor contrary to the statutory provisions of the Assignments and Preferences Act, R.S.O. 1990, c. A.33 and/or Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, and providing an assessment of viability of recovery of the debt.
The required action may include urgent equitable remedies to freeze assets and obtain disclosure of documents and information concerning the debtor’s assets. We commence legal proceedings for the debt, sometimes seeking to set aside fraudulent conveyance, assignment or preference. An early assessment of the merits of such urgent remedies and/or a motion for summary judgment shortly after commencing an action is often required.
Enforcing U.S. Arbitration Awards in Ontario, Canada
Canada acceded to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards in 1986 (the “UNCITRAL Model Law”) declaring that it would apply the Convention only to differences arising out of legal relationships, whether contractual or not, that were considered commercial under the laws of Canada, except in the case of the Province of Quebec where the law did not provide for such limitation.
In Ontario, if the International Commercial Arbitration Act, R.S.O. 1990, c. I.9 applies, then it provides that the UNCITRAL Model Law (and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards as is contained in the UNCITRAL Model Law) is the law of Ontario. Article 35 of the UNCITRAL Model Law requires the recognition and enforcement of the award, subject to the exceptions described in Article 36. We may also, if necessary, consider the applicability of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Enforcing Letters of Request or Letters Rogatory
Though granting such requests is not routine, Ontario courts will consider such requests on the principle of comity – that is, that the US or foreign court would reciprocate if and when the Ontario court requests documents and testimony from a resident of their jurisdiction.
In deciding whether to grant such a request, the court will look at a number of factors, including whether the:
- documents and testimony sought are relevant to the foreign proceeding;
- documents and testimony sought are necessary for the foreign proceeding;
- party seeking the documents and testimony could obtain the same evidence through other means;
- order would be contrary to Canadian public policy;
- documents requested are reasonably specified, so as not to be a “fishing expedition”; and
- request is unduly burdensome on the Ontario resident.
Our lawyers seek cost efficient debt recovery before and after judgment is obtained.
We have strength and experience in advising foreign clients involved in litigation in Ontario and across its borders.
Some of our lawyers have been admitted and practised law in foreign jurisdictions (including England, Bermuda and New York), have both foreign and local legal education, including in the U.S. and U.K. and a number of our lawyers and law clerks speak languages including French, Japanese, Portuguese, Italian, Russian and Cantonese.
We have been retained on and frequently write about cases involving the enforcement of U.S. judgments. Recent decisions we have written about include:
- Supreme Court Clarifies Jurisdiction Requirements for Enforcement of Foreign Judgments
- Court Declines Jurisdiction over New York MVA Despite Passed Limitation Period
- Court of Appeal Overturns Motion Decision on Forum Non Conveniens
- Court Finds US Company Did Not Consent/Attorn to Ontario’s Jurisdiction By Bringing Recognition Action
- Ontario Court Given Jurisdiction over Internet Defamation Claim
- Court Considers Effect of Non-Exclusive Jurisdiction Clause
- Court Finds No Real And Substantial Connection Despite Ontario Contract
- Court Declines Plaintiff’s Request to Stay Its Own Action in Favour of Arbitration
- Court of Appeal Dismisses Appeal Pursuant to “Competence-Competence” Principle
- Court Stays Action in Favour of Mexico Arbitration
- Federal Court of Appeal Decision on Arrest of Sister Ships
- Service of Foreign Process (including U.S. Proceedings) in Ontario, Canada
- Recognition in Ontario of Foreign Judgment Obtained in New York
- German Arbitral Award Recognized and Enforced by Ontario Court
- Court Dismisses Motion For Forum Non Conveniens
- Court Finds Foreign Hotel Operator Properly Served in Ontario
- Court of Appeal Refuses to Exercise Long-Arm Jurisdiction