In Canada, to enforce a Chinese judgment, it is usually necessary to file a recognition and enforcement procedure in the relevant Canadian ** court to review the Chinese judgment under common law.
In Ontario, recognition and enforcement proceedings can be done through ordinary proceedings, i.e. the filing of a complaint with the court. The recognition and enforcement of Chinese judgments in this area are mainly through litigation. Recognition and enforcement proceedings initiated by way of litigation may be subject to the summary judgment procedure, which is simpler and shorter in trial time.
In addition, a more simple application procedure can also be adopted, in which case the facts of the case are usually not disputed, evidence can be submitted in the form of a written oath without the need for evidence disclosure procedures, and the cross-examination of witness testimony is carried out outside the courtroom. However, this procedure does not apply to judgments originating from China at this time.
In the recognition and enforcement phase, if the defendant presents a valid defence, the proceedings may be transferred from summary judgment to ordinary proceedings, so that the case can be fully heard.
Two cases involving the recognition and enforcement of Chinese judgments in B.C. illustrate that the emergence of disputed facts can lead to a full trial.
In the London (China) Machinery Sales case, the BC Supreme Court held that it was not possible to make the necessary determination of the fraud and breach of justice defense in summary judgment proceedings. The Court held that the factual dispute between the parties on key matters was excessive, including: whether certain statements were made;The credibility of the sworn witness in certain matters;or whether inverse inferences should be drawn based on the failure to provide evidence.
The Court also noted that the total amount of judgment involved was more than $5 million, and the transfer of the enforcement proceeding to a traditional trial was commensurate with the size of the case and the factual complexity of the case.
In Liu VIn the Luo case, the BC Supreme Court held that the issue of fairness of the PRC proceedings could not be adequately addressed in summary judgment proceedings. This is because there is evidence of significant disagreement on whether the Chinese courts have correctly followed their service procedures. As in the London (China) Machinery Sales case, the Court noted that due to the large amount in dispute (more than US$2 million), it was reasonable and proportionate to transfer the enforcement proceedings to a traditional trial.
Generally, the applicant (judgment creditor) should apply for recognition and enforcement of the judgment in the court where the defendant's property is located in Canada. In hm.b.2 cases, the Ontario Court of Appeal ruled that the "springboard judgment" was inadmissible.
"Springboard judgment" means that the parties now apply for recognition and enforcement in the court of Province A in Canada, and after obtaining the judgment of the court of Province A, the judgment of Province A will be registered in Province B, and only the registration mechanism for mutual recognition and enforcement of judgments between provinces in Canada is required. This means that the judgment in Province A has become a springboard for the enforcement of foreign judgments in Province B.
However, the Ontario Court of Appeal decided in Hm.b.2 considered the "springboard verdict" to be unacceptable. A more appropriate procedure would be for the parties to apply separately for recognition and enforcement of a foreign judgment in each province in accordance with the laws and procedures of that province.
In general: 1) To enforce a Chinese judgment in Canada, it is necessary to initiate recognition and enforcement proceedings in the Canadian Court in accordance with the common law and meet the corresponding review standards.
2) When choosing the form of enforcement procedure, the decision should be made on whether to adopt the ordinary litigation method or the more simple summary judgment procedure according to the degree of dispute of the facts and the amount in dispute.
3) During the trial, the court is generally not allowed to conduct an in-depth review of the factual basis of the foreign judgment case.
4) When seeking recognition and enforcement of a judgment, it is best to do so in a Canadian jurisdiction where the defendant has assets.
4) Springboard judgments are not accepted, and a more appropriate procedure is to seek recognition and enforcement of foreign judgments separately in each province in accordance with the laws and procedures of that province.
In this article, we detail the legal procedures and requirements for enforcing Chinese judgments in Canada. We discussed how to initiate recognition and enforcement proceedings in the Canadian Court, as well as the applicable examination standards and procedural forms. We emphasise the importance of selecting the appropriate enforcement procedure based on the degree of dispute and the amount in dispute on the facts of the case, and explain that courts generally do not conduct in-depth examination of the factual basis of foreign judgment cases. Finally, we highlighted the importance of seeking recognition and enforcement of judgments in Canadian jurisdictions where the defendant has assets, and mentioned that "springboard judgments" are not accepted and should be avoided.
If you need help enforcing judgments in Canada, you can consult a professional, such as the cross-border debt collection team led by Mr. Du Guodong of Hylands Law Firm, or a cross-border debt collection commercial company like Yudu Consulting, by understanding these requirements and procedures, you can successfully enforce Chinese judgments in Canada.
Author: Du Guodong.
Debut: Yudu Consulting - Cross-border Debt Collection.