Enforcing U.S. Judgments in Ontario Canada
Enforcing U.S. Injunctions and Orders in Ontario Canada
Acting for U.S. Clients and with U.S. Counsel | Attorneys in Ontario Litigation
Toronto Debt Collection Attorneys | Debt Recovery in Ontario Canada
Enforcing Arbitration Awards in Ontario, Canada
U.S. judgments obtained in U.S. Federal and State courts may be recognized and enforced in Ontario by a common law action on the U.S. judgment, if in accordance with the common laws of Ontario (and Canada, if applicable) concerning the recognition and enforcement of foreign judgments.
The enforceability of U.S. money judgments, U.S. declaratory judgments and U.S. injunctions and other urgent equitable relief will each be considered on a case-by-case basis.
The procedures available for the Enforcement of an Ontario Court judgment in Ontario are set out on our Enforcement of Ontario Judgments in Ontario webpage.
Enforcing U.S. Injunctions and Non-Monetary Judgments in Ontario, Canada
The Courts in Ontario may in the required circumstances recognize and enforce U.S. equitable orders such as injunctions (not just money judgments). They may give effect to U.S. world-wide injunctions.
The following factors are considered in determining recognition and enforceability of a U.S. 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.
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.
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 are often consulted by those located in the United States, and in the past have been consulted by or retained in litigation by those (or matters located) in Alaska, California, Washington, Nebraska, Illinois, Missouri, Ohio, New York, New Jersey, Rhode Island, Massachusetts, North Carolina, Tennessee, Georgia, Louisiana, Florida and Texas. Internationally, we have also been involved in litigation or arbitration with clients (or matters) located in the Netherlands, Norway, Sweden, England, Denmark, Italy, Switzerland, Germany, Greece, Cyprus, Malta, Monaco, Guyana, Liberia, South Africa, Angola, The Bahamas, Bermuda, British Virgin Islands, Dominican Republic, Dubai, United Arab Emirates, Iran, Kuwait, India, Bangladesh, South Korea, Hong Kong, PRC and Australia.
- unpaid sale of goods
- accounts receivables
- enforcement of payment of a promissory note or other contractual debt
- enforcement of the return of valuable assets, loaned or leased
- multi-jurisdictional, coordinated debt collection and enforcement of creditor’s rights
- recovery of offshore assets (in coordination with lawyers in offshore jurisdictions)
We are experienced in determining whether or not a 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.
Our lawyers seek cost efficient debt recovery before and after judgment is obtained.
We are experienced in cross-border litigation and international arbitration, including the enforcement of foreign judgments and arbitration awards.
- Injunctive relief concerning assets of an intended defendant in the possession of a third party, such as a bank (Mareva or freezing order)
- Order for disclosure by third party about assets and location of assets of an intended defendant (Norwich order)
- Obtaining a certificate of pending litigation to be registered on land to avoid its transfer pending determination of a dispute about the land by the courts
And seeking post-judgment remedies such as:
- Post-judgment Mareva injunction / post-judgment freezing order to freeze the assets of the judgment debtor in the possession of a third party (e.g. bank)
- Post-judgment Norwich order to obtain disclosure of documents and information from a third party about the judgment debtor and the judgment debtor’s assets
These are in addition to examination in aid of execution (formerly called a judgment debtor examination), garnishment proceedings and seizure and sale of land.
Absconding Debtors Act, R.S.O. 1990, c. A.2
Under this Act the property of absconding debtor may be seized and taken by an order of attachment for the satisfaction of the person’s debts.
Assignments and Preferences Act, R.S.O. 1990, c. A.33
Provisions of this Act include statutory authority:
- to void, as against the creditors of the person a consent judgment given by a person to those creditors, being at the time in insolvent circumstances or unable to pay his, her or its debts in full or knowing himself, herself or itself to be on the eve of insolvency, voluntarily or by collusion with a creditor with intent thereby to defeat, hinder, delay or prejudice creditors wholly or in part, or to give one or more creditors a preference over other creditors or over any one or more of them;
- to void, as against the creditor or creditors injured, delayed or prejudiced every gift, conveyance, assignment or transfer, delivery over or payment of goods, chattels or effects, or of bills, bonds, notes or securities, or of shares, dividends, premiums or bonus in any bank, company or corporation, or of any other property, real or personal, made by a person when insolvent or unable to pay the person’s debts in full or when the person knows that he, she or it is on the eve of insolvency:
- with intent to defeat, hinder, delay or prejudice creditors, or any one or more of them; or
- with the intent to give a creditor an unjust preference over other creditors or over any one or more of them; and
- to follow the proceeds of property fraudulently transferred in the above circumstances
Fraudulent Conveyances Act, R.S.O. 1990, c. F.29
Provisions of this Act include statutory authority to void, as against such persons and their assigns, every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures.
If you have any concerns or issues regarding debt collection or the enforcement of judgments or arbitration awards, please contact our office to arrange for an initial consultation.
Please contact Gilbertson Davis LLP to arrange an initial consultation.