Practical Considerations For Enforcing U.S. Judgments in Ontario

July 27, 2021
Robert Alfieri

In a world in which businesses, assets, and people cross borders with ease, courts are increasingly called upon to recognize and enforce judgments from other jurisdictions.¹

While tourism and ease of mobility between the United States and Canada may be muted as a result of COVID-19, there is no question that the economies between these two countries are still highly integrated. This integration at times can lead to cross-border commercial disputes, which have not been slowed by the pandemic. Ontario counsel may find themselves being asked by U.S. foreign judgment creditors about how they can enforce their U.S. judgment(s) in Ontario, and what is required to do so.

The purpose of this article is to provide counsel with practical advice concerning the strict legal and procedural requirements which will need to be met before an Ontario court will recognize and enforce a U.S. judgment. More specifically, this blog will provide a brief discussion on the following considerations for enforcing a U.S. judgment in Ontario:

Relevant limitation periods
Originating process: action vs. application
Jurisdiction
Rules and multilateral treaties pertaining to service
Road to enforcement

It should be reiterated that this blog focuses only on the enforcement of U.S. judgements in Ontario as opposed to other provinces. This is a crucial distinction because Ontario and the U.S. lack legislation or treaties pertaining to the reciprocal enforcement of judgments whereas a number of provinces have legislated for the reciprocal enforcement of judgments from certain U.S. states.²As such, counsel would be wise to ensure whether the respective particular foreign judgment falls under the purview of reciprocal enforcement legislation.

I. Limitation Period

The Court of Appeal for Ontario has repeatedly confirmed that foreign judgments are to be treated as an action upon a simple contract debt, which attracts the basic two-year limitation period under the Limitations Act.³ The clock begins to “run” on this two-year period when the time to appeal the foreign judgment has expired, or if an appeal is taken, the date of the appeal decision.⁴

Importantly, the two-year limitation period is subject to the statutorily-enshrined discoverability principle that is found in section 5 of the Limitations Act.⁵ As a result, a claim based on a foreign judgment may not be discovered under section 5 of the Limitations Act, until such time as the judgment creditor knew or ought to have known that the judgment debtor had exigible assets in Ontario and could be served with process.⁶

The question of whether a judgment creditor “knew” or “ought to have known” is to be determined based on the factual context and the plaintiff’s actual circumstances, which necessitates a case-by-case analysis on these factors.⁷ That being said, a judgment creditor is under an obligation to exercise due diligence with respect to seeking enforcement against the judgment debtor.⁸ However, this obligation does not rise to such a level that a party is expected to conduct a worldwide search for assets or to scour jurisdictions with which the judgment debtor has no known ties.⁹

In light of the above, counsel should first determine when the appeal period(s) for the foreign judgment expires to ascertain when the limitation period begins to run. In the event that the two year period has lapsed, the next consideration is whether the judgment creditor knew or ought to have known that the debtor had exigible assets in Ontario.

II. Action or Application

There is a fragmentation in the law as to whether an application or an action should be brought to enforce a foreign judgment from a non-reciprocating jurisdiction such as the U.S. As further explained below, some courts have taken the position that either an application or action could be pursued, whereas others have vehemently held that an application is wholly inappropriate and only an action will suffice.

A. Application or Action?

In the case of Nuvex Ingredients Inc. v. Snack Crafters Inc.,¹⁰ the judgment creditor brought an application under rule 14-05(3)(h) to enforce a default judgment against the judgment debtor to enforce a judgment obtained in Minnesota; a non-reciprocating jurisdiction. At the return of the application, Justice MacKenzie raised the following inquiry:

As to whether or not a foreign judgment from a non-reciprocating jurisdiction under the Act was enforceable from the viewpoint of process in Ontario by means of an action rather than an application.¹¹

His Honour adjourned the application to allow submissions on the above point and noted there was a “dearth of authority” on the issue and it was unclear whether the enforcement of a foreign judgment is exclusively by way of an action.¹²

In written submissions from the parties, Justice McKenzie was directed to the cases of Lax v. Lax,¹³ and Metcalfe v. Racer Sportif Inc.¹⁴ In Metcalfe, the court had no problem granting an application by a judgment creditor to enforce a judgment awarding damages. By contrast, the Court of Appeal for Ontario in Lax held that an action must be brought where there is no reciprocal legislation. More specifically the Court of Appeal stated:

[E]xcept where there is an applicable Reciprocal Enforcement of Judgments Act, unlike a domestic judgment, a foreign judgment cannot be directly enforced by execution. Rather, an action must be brought to enforce the debt it creates.¹⁵

Justice McKenzie ultimately concluded that either an application or action is appropriate, and stated the following:

I conclude that where a claimant is enabled under a statute to “apply” to the courts for relief, the law does not require the claimant to proceed by way of application under R.14.05(3). It is open to the claimant to proceed either by action or application under R.14.05(3) [ … ] [t]o not grant the applicant the relief being sought in the circumstances of this application pursuant to clause (h) of sub-rule (3) of Rule 14.05 would be to give greater weight to form than substance.¹⁶

Despite the holding in Lax, the court in Nuvex found that since the Rules do not mandate one particular form of proceeding for the enforcement of a foreign judgment either an application or action would do.

B. Action Is the Only Appropriate Mechanism

In Noël et Associés, S.E.N.C.R.L. v. Sincennes,¹⁷ an application was brought under rule 14.05(3)(h) to recognize and enforce a Quebec judgment in Ontario. The court observed that this exact procedure was used in Nuvex and the court in that instance held that the broad wording of rule 14.05(3)(h) permits the use of an application to obtain declaratory relief to recognize and enforce a foreign judgment for a debt in Ontario.¹⁸

Despite the holding in Nuvex, the court disagreed that an application was appropriate. In reaching this conclusion the court stated:

Ontario courts in recent years have liberally interpreted the availability of applications under rule 14.05(3)(h) [ … ] [t]he expansive interpretation by the courts of rule 14.05(3)(h) is not limitless however and must be read within the context of rule 14.02 which states that every proceeding shall be by action, as opposed to an application, except where a statute or the Rules of Civil Procedureprovide otherwise [ … ] [f]ocusing solely upon the broad wording of rule 14.05(3)(h) ignores the Ontario remedy being requested as well as rules 14.02 and 76.02.

[ … ]

The above analysis leads to the conclusion that a proceeding to recover judgment on a promise to pay the amount of a foreign judgment from a non-reciprocating state should be brought by action, not application.¹⁹

Accordingly, the court in Noël disagreed with the holding in Nuvex and held that the appropriate way to proceed in such circumstances is exclusively by way of action.²⁰

C. The Latest Word

In the 2020 decision of JGB Collateral LLC v. John Rochon and Donna Jean Hewitt Rochon,²¹ the judgement creditor had brought an application to recognize and enforce a judgment issued by a court in New York that required the respondents to pay the applicant USD $6,72,197.87. The respondent resisted the application, inter alia, on the basis that the proceeding should have been brought as an action. More specifically, the respondent argued that Noël “conclusively determined” that the enforcement of a judgment is proper only by way of an action and not an application.

The court disagreed with the respondent holding:

The respondents have advanced no principled no [sic] reason why a proceeding to recognize and enforce foreign judgment should not be capable of the same procedural choices as any other claim.Where there are no material facts in dispute, there is no reason why the relief sought should not proceed by way of application. Even if the proceeding were commenced by way of action, it would still be open to the plaintiff to move for summary judgment, a procedure largely similar to an application.

[ … ]

To the extent that Noël does purport to set out a conclusive rule to the effect that claims for the recognition and enforcement of a foreign judgement must be commenced by way of action, I respectfully disagree with it for the reasons set out above.²²

The court also noted that a number of decisions both pre and post Noël have permitted applications to enforce a foreign judgment.²³

D. Conclusion

There is conflicting jurisprudence on whether an application as opposed to an action is the appropriate procedure for enforcing a foreign judgment in Ontario. Despite the recent ruling in JGB, which holds that an application or an action is appropriate, counsel would be wise to err on the side of caution and commence the proceeding by way of action until there is appellate guidance on this matter.

III. Jurisdiction

A Canadian court, as with any case, must have some jurisdictional basis to exercise authority over a party, including a foreign debtor.²⁴

In the case of Chevron Corp. v. Yaiguaje, the Supreme Court of Canada was asked, inter alia, to determine whether Ontario courts have jurisdiction to recognize and enforce a foreign judgment from Ecuador against a foreign judgment debtor, Chevron Corporation (“Chevron”), which had no connection, assets or otherwise, to Ontario.²⁵ Chevron argued that this question should be answered in the negative and took the position that there is a requirement that the company have assets in Ontario before a court can establish jurisdiction.

The Supreme Court disagreed with Chevron’s position. Justice Gascon, writing on behalf of a unanimous bench, answered the question as follows:

In my view, jurisdiction in an action limited to recognition and enforcement of a foreign judgment within the province of Ontario is established when service is effected on a defendant against whom a foreign judgment debt is alleged to exist. There is no requirement, nor need, to resort to the real and substantial connection test.²⁶

[ … ]

In this case, jurisdiction is established with respect to Chevron, which was served ex jurispursuant to Rule 17.02(m) of the Rules.²⁷

The Court went on to take note that in the modern age it would be unfair to require the presence of assets in the enforcing jurisdiction as a prerequisite to the recognition and enforcement of a foreign judgment. More specifically, the Court remarked:

In today’s globalized world and electronic age, to require that a judgment creditor wait until the foreign debtor is present or has assets in the province before a court can find that it has jurisdiction in recognition and enforcement proceedings would be to turn a blind eye to current economic reality.²⁸

In summary, and in the context of enforcing a foreign judgment, the presence of assets in the enforcing jurisdiction is not a prerequisite to the recognition and enforcement of a foreign judgment.²⁹ In such instances, jurisdiction will be established when proper service is achieved. In the event that a foreign debtor has a physical presence or dealings in Ontario, then jurisdiction can simply be made out of the traditional, presence-based jurisdiction.³⁰

IV. Service

Clear and indisputable proof of proper service is absolutely vital for the enforcement of foreign judgments in Ontario. As a result of the onerous procedural requirements for service, many enforcement proceedings have failed due to the foreign plaintiff’s failure to properly serve, and document the service, of the defendant at the outset of the foreign proceeding.³¹

A. The Hague Convention

Canada and the United States are both signatories to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Convention”).³² The Hague Convention governs the appropriate means of service of judicial and extrajudicial documents for signatory States and applies to all civil and commercial matters.³³ The Hague Convention does not allow service by any method other than the options identified within the Hague Convention itself. Accordingly it is critical that service complies with it.

As discussed below, there are two primary ways to serve under the Hague Convention; through a Central Authority or through personal service. Each are briefly discussed below.

I. Central Authority

The Hague Convention requires each contracting state to establish a Central Authority to receive requests for service of documents from other countries.³⁴ In Canada, each province and territory has a Central Authority³⁵o save time, requests should be forwarded directly to the Central Authority of the province or territory concerned. They may, however, also be forwarded to the Federal Central Authority which will transmit them to the relevant Central Authority.”] and in the United States the Central Authority is the Federal Department of Justice.³⁶ Once a Central Authority receives a request for service, it will serve the documents as prescribed by the internal law of the receiving state, or as designated by the requester and compatible with the law of the receiving state, and will then provide a certificate of service.³⁷

While service through a Central Authority is the main channel of transmission, it can often take up to or exceed thirty (30) business days to effect service.³⁸ For this reason, the next method discussed below is often utilized for more expedited results.

II. Personal Service

As above, each signatory to the Hague Convention is required to designate a “Central Authority” which will receive requests for service coming from another signatory country.³⁹ However, there are a number of exceptions to the requirement that the Central Authority be used for the service of documents, such as Article 10, which provides as follows:

Article 10

Provided the State of destination does not object, the present Convention shall not interfere with

the freedom to send judicial documents, by postal channels, directly to persons abroad,
the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.⁴⁰

The most relevant provision is Article 10(c), which permits service within a contracting State through the normal procedures for service permitted within that State. Ontario incorporated the relevant articles of the Hague Convention, including Article 10, into Rule 17.05(3) of the Rules of Civil Procedure, which provides:

An originating process or other document to be served outside Ontario in a contracting state shall be served:

1. through the central authority in the contracting state; or
2. in a manner that is permitted by Article 10 of the Convention and that would be permitted by these rules if the document were being served in Ontario.⁴¹

Importantly, Article 10, including its codification within Rule 17.05(3), only applies where the “State of destination does not object”.⁴² A table which discloses whether a contracting State opposes the use of Article 10 can be found on the Hague Conferences’ website.⁴³ Relevant for the purposes of this article is the fact that the U.S. has filed no objections to the provisions or sub-provisions of Article 10.

As noted above, Rule 17.05(3)(b) permits service in a manner that is permitted by Article 10 of the Hague Convention and that would be permitted if the document were being served in Ontario. In the case of Pitman v. Mol, it was observed that a number of American cases have concluded that Article 10(c) authorized the use of private servers, so long as their use is authorized in the contracting State where the documents are to be served.⁴⁴

By way of example, let’s say you wished to enforce a foreign judgment in Ontario and the judgment debtor resided in Colorado. As the use of private process servers to deliver judicial documents is permitted in Colorado and in Ontario, this means you could hire a process service in that state and have them effect personal service.⁴⁵ Such service would have to comply with the local jurisdiction in this example, the Colorado Rules of Country Civil Procedure and the Ontario Rules.⁴⁶

III. Personal Service – Additional Considerations

It should be noted that when personnel service is conducted under the purview of the Hague Convention, such service cannot be substituted, validated, or dispensed with under the Rules in Ontario. This is the case even if the defendant has actual notice of service!⁴⁷ As noted by the Court of Appeal for Ontario in Khan Resources Inc. v. Atomredmetzoloto JSC,⁴⁸to allow otherwise would allow Canadian courts to do away with the international standard demanded by the Hague Convention and undermine Canada’s treaty obligations.⁴⁹

Nonetheless, the courts in Canada have refused to rule out a potential access to justice exception to the otherwise prevailing rule that the Hague Convention is exclusive, which may provide a litigant reprieve in “extreme circumstances”.⁵⁰ More specifically, the access to justice exception would allow a plaintiff who has exhausted all possible avenues of service under the Hague Convention, to use an alternative means of service to prevent a denial of access to justice.⁵¹

V. Road to Enforcement

To summarize, counsel should ensure that the enforcement of the foreign judgment falls within the two (2) year limitation period prescribed by the Limitations Act. If not, counsel then should conduct a discoverability analysis to determine whether the exigible assets ought to have been discovered within the two year period. Assuming the matter does not suffer from any fatal limitations deficiency, counsel will then commence their claim by way of statement of claim and ensure service of the same complies with the Hague Convention. The valid ex juris service in turn provides the Ontario court with jurisdiction over the matter.

It has been observed by the courts that once an action for the recognition and enforcement of a foreign judgment has been commenced that the usual procedure is to proceed by way of summary judgment thereafter, given the very limited defences available to a judgment debtor, which defences are usually not available in most cases as set out in detail below.⁵²

A. Test for Recognition and Enforcement⁵³

Canadian courts have adopted a “generous and liberal approach” to the recognition and enforcement of foreign judgments.⁵⁴ In fact, a court is to make every presumption in favour of a foreign judgment, including the presumption that the foreign judgment is valid.⁵⁵ In Chevron, the Supreme Court of Canada provided the following guidance on a domestic court’s purpose and role in the enforcement of a foreign judgment:

[T]he purpose of an action for recognition and enforcement is not to evaluate the underlying claim that gave rise to the original dispute, but rather to assist in enforcing an already-adjudicated obligation. In other words, the enforcing court’s role is not one of substance, but is instead one of facilitation. The court merely offers an enforcement mechanism to facilitate the collection of a debt within the jurisdiction.⁵⁶

In order to facilitate the recognition and enforcement of a foreign judgment, the following requirements must be satisfied:

that the foreign court properly exercised jurisdiction in the action in that it had a real and substantial connection with either the subject matter of the action or the defendant;⁵⁷
the judgment seeking to be enforced is final and conclusive and there is proof of the amount of the judgment;⁵⁸ and,
whether the domestic court should refuse enforcement of the foreign judgment due to the defence of fraud, public policy, or lack of natural justice.⁵⁹

Once it has been established that the foreign court had jurisdiction, the only recognized defences, which can only be raised by a judgment debtor to an action for recognition of a foreign judgment in Ontario are that:

1. the judgment was obtained by fraud;
2. the judgment was obtained in contravention to principles of natural justice; or,
3. enforcement of the judgment would be contrary to public policy.⁶⁰

The burden of proof for these affirmative defences lies on the party who seeks to impeach the foreign judgment to prove the grounds on which it ought to be impeached.⁶¹ As every presumption is to be made in favour of a foreign judgment, it has historically been quite difficult to successfully make out any of these defences.

VI. Conclusion

While Ontario remains a judgment creditor friendly jurisdiction for U.S. judgments, it lacks a statutory regime for the expedited and efficient enforcement of these judgments. The legislative absence of a reciprocal enforcement regime results in the need for counsel to carefully and expertly navigate the strict procedural requirements in having a U.S. judgment recognized and enforced in Ontario.

Footnotes

Chevron Corp v. Yaiguaje, 2015 SCC 42 at para. 1. ↵
British Columbia: Court Order Enforcement Act, RSBC 1996, c 78 (B.C. Court Order Enforcement Act); Washington, Alaska, California, Oregon, Colorado and Idaho.
Alberta: Reciprocal Enforcement of Judgments Act, RSA 2000, c R-6 (Alberta Reciprocal Enforcement of Judgements Act); Washington, Idaho and Montana.

Manitoba: The Reciprocal Enforcement of Judgments Act, CCSM c J20; Idaho and Washington.

Prince Edward Island: Reciprocal Enforcement of Judgments Act, RSPEI 1988, c R-6 (P.E.I. Reciprocal Enforcement of Judgements Act); Washington State.

See also United Kingdom: Reciprocal Enforcement of Judgments (U.K.) Act RSO 1990, c R.6; Ontario. ↵
Lax v. Lax,(2004) O.J. No. 1700 (C.A.) at para. 11; Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44 at para. 3; Grayson Consulting Inc. v. Lloyd, 2019 ONCA 79 at para. 28. ↵
Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44 at para. 3 ↵
Limitations Act, 2002, S.O. 2002, c. 24 Sched. B at s. 5; Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44 at para. 29. ↵
Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44 at para. 82. ↵
Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44 at para. 82. ↵
Grayson Consulting Inc. v. Lloyd, 2018 ONSC 2020 (S.C.) aff’d on appeal 2019 ONCA 79 ↵
Grayson Consulting Inc. v. Lloyd, 2018 ONSC 2020 (S.C.) aff’d on appeal 2019 ONCA 79 at para. 82; Yugraneft Corp v. Rexx Management Corp, 2010 SCC 19 at paras. 49, 58, 51. ↵
Nuvex Ingredients Inc. v. Snack Crafters Inc., (2005) O.J. No. 220 (S.C.) (Nuvex). ↵
Nuvex Ingredients Inc. v. Snack Crafters Inc., (2005) O.J. No. 220 (S.C.) at para. 3 (Emphasis Added). ↵
Nuvex Ingredients Inc. v. Snack Crafters Inc., (2005) O.J. No. 220 (S.C.) at para. 4. ↵
Lax v. Lax, (2004) O.J. No. 1700 (C.A.) (Lax). Lax v. Lax,(2004) O.J. No. 1700 (C.A.) at para. 11 ↵
Metcalfe v. Racer Sportif Inc., (2004) O.J. No. 2756 (S.C.) (Metcalfe). ↵
Lax v. Lax,(2004) O.J. No. 1700 (C.A.) at para. 13 (Emphasis Added). ↵
Nuvex Ingredients Inc. v. Snack Crafters Inc., (2005) O.J. No. 220 (S.C.) at para. 17. ↵
Noël et Associés, S.E.N.C.R.L. v. Sincennes, 2012 ONSC 3770 (Noël). ↵
Noël et Associés, S.E.N.C.R.L. v. Sincennes, 2012 ONSC 3770 at para. 17. ↵
Noël et Associés, S.E.N.C.R.L. v. Sincennes, 2012 ONSC 3770 (S.C.) at paras. 21-26. ↵
See also the case of Sass v. Reingold, 2015 ONSC 4100 (Div. Ct.) at paras. 1-3, 6, wherein the Divisional Court converted an application to enforce a foreign judgment into an action for the same so it could proceed. ↵
JGB Collateral LLC v. John Rochon and Donna Jean Hewitt Rochon, 2020 ONSC 1732 (S.C.). ↵
JGB Collateral LLc v. John Rochon and Donna Jean Hewitt Rochon, 2020 ONSC 1732 at paras. 21-22. ↵
JGB Collateral LLc v. John Rochon and Donna Jean Hewitt Rochon, 2020 ONSC 1732 at para. 22 citing to: Nuvex Ingredients Inc. v. Snack Crafters Inc. (2005), 74 O.R. (3d) 397 (S.C.) at paras. 11-18; Québec (Commission de la Construction) v. Access Rigging Services Inc., 2010 ONSC 5897 (S.C.) at para. 14; Hartzog v. McGriskin, 2010 ONSC 5618(S.C.) at para. 21; Zashko v. Touchgate and Ahmed, 2018 ONSC 3734 (S.C.) at paras. 1 and 3. See also: Dead End Survival, LLC v. Marhasin, 2019 ONSC 3569 (S.C.) at para. 3. ↵
Chevron Corp. v. Yaiguaje 2015 SCC 42 at para. 27. ↵
Chevron Corp. v. Yaiguaje 2015 SCC 42 at para. 1. ↵
Chevron Corp. v. Yaiguaje 2015 SCC 42 at para. 36. ↵
Chevron Corp. v. Yaiguaje 2015 SCC 42 at paras. 76; see also para. 3 (Emphasis Added). ↵
Chevron Corp. v. Yaiguaje 2015 SCC 42 at paras. 57. ↵
Chevron Corp. v. Yaiguaje 2015 SCC 42 at paras. 57, 58. ↵
Chevron Corp. v. Yaiguaje 2015 SCC 42 at paras. 84-87. ↵
For example see: Beals v. Saldanha, 2003 SCC 72; Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189, Metcalfe Estate v. Yamaha Motor Canada Ltd., 2012 ABCA 240 , Wei v Li, 2019 BCCA 11; Petrovic v. Petrovic, 2019 ONSC 5838(S.C.). ↵
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercials Matter, adopted the 15th day of November, 1965 (Hague Convention). ↵
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercials Matter, adopted the 15th day of November, 1965, preamble and Art. 1. ↵
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercials Matter, adopted the 15th day of November, 1965 (Hague Convention)., Art. 2; Rules of Civil Procedure, R.R.O 1990, Reg. 194 at R. 17.05(3)(a). ↵
See the Hague Conference on Private International Law website which lists and describes all the Central Authorities designated by Canada: http://www.hcch.net/index_en.php?act=authorities.details&aid=248. It should be observed that Canada’s commentary to the Hague Convention notes as follows: “[T ↵
It should be noted that although the Department of Justice has delegated the service of process function performed by the Central Authority to a private contractor, ABC Legal, service must still be made upon the Department of Justice. ↵
Metcalfe Estate v. Yamaha Motor Canada Ltd., 2012 ABCA 240 at para. 32. ↵
There has been some discussion that ABC Legal may allow, or will soon offer, expedited service to be completed in seven (7) business days as opposed to the traditional thirty (30) business days. ↵
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercials Matter, adopted the 15th day of November, 1965, preamble and Art. 1. ↵
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters,Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercials Matter, adopted the 15th day of November, 1965, preamble and Art. 10. ↵
Rules of Civil Procedure, R.R.O. 1990, Reg. 194 Rule 17.05(3); see also Rule 17.05(1) ↵
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters,Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercials Matter, adopted the 15th day of November, 1965, Art. 10. ↵
Hague Conference on Private International Law, Status Table (2020), online: https://www.hcch.net/en/instruments/conventions/status-table/print/?cid=17 ↵
Pitman v. Mol, 2014 ONSC 2551 at para. 57. ↵
Colorado Rules of Civil Procedure Rule 304(a)-(c). ↵
Colorado Rules of Civil Procedure. ↵
Petrovic v. Petrovic, 2019 ONSC 5838 (S.C.) at para. 6; Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189 at paras. 26, 49. ↵
Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189 ↵
Khan Resources v. Atomredmetzoloto JSC, 2013 ONCA 189 at paras. 26-48; citing in part to Metcalfe Estate v. Yamaha Motor Canada Ltd., 2012 ABCA 240. ↵
Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189 at paras. 58,60. ↵
Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189at paras. 54-60; Zhang v. Zhang, 82 O.R. (3d) 306 (S.C.); Xue v. Zheng, 2018 ONSC 1979 (S.C.) at paras. 22-23, 29-33. ↵
Noël et Associés, S.E.N.C.R.L. v. Sincennes, 2012 ONSC 3770 (S.C.) at para. 16; Dish v. Shava, 2018 ONSC 2867 (S.C.) at para. 2. ↵
Often the term “enforcement” is used to refer to both recognition and enforcement. However, the terms do carry different legal meanings. Broadly speaking recognition is considered to be the act of a Canadian court acknowledging the legal validity of a foreign judgement whereas enforcement is considered to be the action of positively putting the foreign judgment into effect. The former must occur before the latter, but are often dealt with contemporaneously by the courts. ↵
Chevron Corp. v. Yaiguaje 2015 SCC 42 at para. 27. ↵
Beals v. Saldanha, 2003 SCC 72 at para. 211; Burk Steel v. Steelcon Group, 2011 ONSC 6636 at para. 44, citing with approval Black Gold Potato Sales Inc. v. Garibaldi, (1994) O.J. No 1163 (Ont. Gen. Div.) ↵
Chevron Corp. v. Yaiguaje 2015 SCC 42 at para. 44 (Emphasis Added). ↵
For a detailed discussion of this factor see: Morguard Investments Ltd. v. De Savoye, (1990) 3 SCR 1077 and Beals v. Saldanha, 2003 SCC 72 ↵
This requirement necessitates that the judgment in question is not under appeal or within the period of time in which an appeal can be sought. Further the judgment must be quantifiable. ↵
Morguard Investments Ltd. v. De Savoye, (1990) 3 SCR 1077 at p. 1110; Beals v. Saldanha, 2003 SCC 72 at paras. 40-42, 59, 71; Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52 at paras. 10-11, 89; Chevron Corp. v. Yaiguaje 2015 SCC 42 at paras. 35, 37; see also Dish v. Shava, 2018 ONSC 2867 at para. 11. ↵
Beals v. Saldanha, 2003 SCC 72 at paras. 40-42, 211. ↵
Beals v. Saldanha, 2003 SCC 72 at paras. 61,64, 211. ↵

Robert Alfieri

The author of this blog is Robert Alfieri. Rob was an associate at Wagner Sidlofsky LLP and a member of the firm’s Estate and Commercial Litigation Groups.

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Wonderful!!! I'd left a message for Mr. Wagner, and he called me back same day. He answered my questions about the probate case I'm going through, offered insight, and gave me hope! Tough, knowledgeable, kind...he will be your advocate!

Roma Baran

19:18 18 May 23

Hershel Sahian = Tenacious, ProfessionalExcellence Exemplified !!Our case involved a dispute with our neighbour who refused to pay his one-half share of the cost of reconstruction of our division fence, as well as his refusal to move a wrongly situated shed between our properties.Despite numerous requests and our serving him with a Notice Letter, he refused to resolve matters amicably, and hired a paralegal in an attempt to intimidate us. At this point, we decided it was time to pull out the big guns. We called Hershel !Without hesitation, Hershel issued a Claim with the Small Claims Court and filed a Complaint with the City regarding the shed. Upon inspection, the City ordered the neighbour to move his shed.A Settlement Conference was set by the Court to deal with the non-payment for the fence. Interestingly, the neighbour was now being represented by his daughter, not the paralegal. Just days prior to the Settlement Conference, the neighbour offered to settle the matter for an amount less than what was now owing. Hershel refused to entertain such an offer and demanded full damages, interest and costs.At the Settlement Conference, in addition to an Order that the neighbour pay full damages, interest and costs, Hershel requested a formal Judgment against the neighbour. During the Conference, the neighbour’s daughter attempted to elicit sympathy from the Court, repeating several times the fact that she had no legal training. The Judge was reluctant to grant the Judgement, however, Hershel would not take “no” for an answer and advised we were fully prepared to proceed to trial.The result? The Judge made the Order, granted the Judgment, and the neighbour paid the full damages, interest and costs.Hershel always kept us fully advised. He made his position to the opposing side clear from day one and never wavered from his course of action, Hershel is tenacious, yet conducted himself in a highly professional manner throughout the litigation process.Hershel brings years of experience in many areas of law to the table. We are grateful for his counsel and have no hesitation in highly recommending him to anyone looking for a greatcounsellor and litigator.Thank you Hershel !!!Roma & Michael Baran

John Collins

21:16 17 Apr 23

Further to having been appointed as Executor of a deceased relative's Will, who had been a resident of the United States, I was faced with the daunting task of administering a rather complicated estate.The situation was further compounded by the fact I live in the United Kingdom and a number of the interests were located in different countries. One of which was a savings account held with TD Canada Trust and contained a considerable sum.Upon initial contact with TD's estates department I quickly learned why this particular institution had earned a reputation for being notoriously difficult and obstructive when dealing with such matters.Confronted by such surreptitious practices I decided to seek legal counsel.Having been attracted by Wagner and Sidlofsky's online reviews and an equally impressive initial consultation with David Wagner, I had no hesitation in enlisting the firm's services.Ably assisted by Mady Kinnear, I experienced what can only be described as an exemplary standard of professionalism. All communications were concise, clear and extremely prompt.David's experience in conjunction with his attention to detail anticipated every difficulty and allayed any concerns I had previously held regarding a satisfactory outcome.Words cannot express the gratitude and appreciation I will always have for the impeccable support I received throughout the process.Consequently, I highly recommend the firm of Wagner Sidlofsky to any other prospective clients.

Angie Carboni

07:21 08 Nov 22

Dear MuktaI can’t thank both of you at Wagner Sidlofsky enough, for the sound advice that you gave me today, during my free consultation, regarding my application, and process in my becoming my mothers power of attorney (legal guardian).I truly appreciated the honesty, pertaining to the application which I made, with the Ontario’s guardian and public trustee, you both truly gave me peace of mind regarding how I should proceed.Something that is not regularly found these days, but much needed in these times. Once again thank you and God bless both of you. I highly recommend your services to anyone who needs honest objective sound advice that think of your clients needs, before your own financial needs.SincerelyAngela Carboni

christine labelle

16:31 29 Aug 22

The decision to work with any law firm can be quite overwhelming. I recently worked with James regarding an issue after the death of a treasured family member. After questionable use of funds by the power of attorney, the decision was made to file a civil suit. James Dunphy is extremely knowledgeable and kind. My questions, concerns, phone calls and emails were always promptly returned. He helped me feel empowered and supported to see this issue through to completion. I would highly recommend this law firm and James in particular, for the high level of professionalism. Thank you to Mr. Wagner for connecting James and myself.

G Ing

17:42 11 Nov 21

James Dunphy and Brad Phillips worked on my family's estate litigation case and I was not only pleased with the result but, was impressed with the level of focus and detail that they invested in representing our family's interests.James is a pragmatic lawyer who analyzes every detail presented to him and is exceptionally articulate. Clearly, he outranks the competition by leaps and bounds.Brad's extensive experience and strategic thinking was instrumental in achieving our goals. He is candid and very approachable.I truly felt that we worked as a team and that I was respected as a client. I would not hesitate to refer this firm to those in need of litigation services.

Carol Spivak

22:27 06 Oct 21

Words cannot express what fine individuals David and Adin Wagner are. During a traumatic and turbulent moment in my life, David and Adin provided excellent, courteous and professional care. They corresponded with concise feedback and easily understood information. They were always available to provide support when needed, and gave me peace of mind . I never felt alone, they treated me with dignity, and gave me the confidence that my late husband’s estate would be looked after in a proper manner. Needless to say, my engagements with them ended with a very satisfactory outcome. I can’t recommend this law firm enough.

Anet Landoi

07:13 01 Jul 21

Hershel Sahian is an excellent lawyer. I would highly recommend him to anyone in need of a litigator. He took the initiative with my lawsuit. I never had to remind him, run after him or worry that he wasn’t paying attention to my case. He treated my case diligently and aggressively. There is no question that he will not allow his clients to be pushed around. I was very pleased with how quickly my lawsuit was resolved and the outcome exceeded my expectations. If you want a lawyer you can trust to fight for you, Hershel is the man who will get the job done.

Cristina C

17:05 12 May 21

The 5 start system does not do justice to Peter Askew who is outstanding all around: very knowledgeable, prompt , transparent in what he charges , detailed oriented and very bright. I have dealt with lawyers previously in my divorce and also for my current real estate litigation case, before I retained Peter A. He is in another league altogether. He worked on my case as soon as he was receiving documents from me , no delays, no excuses , no “ competing priorities”. Very honest and hard working . I love his humble demeanor contrasting with strong actions and documents . Peter A. thought of all possibilities that the counterpart could have come up with and he prepared for everything, nothing was left to chance . I expected way more trouble with my case but I think we were so well prepared that the counterpart did not have much chances. The bill at the end was fair and very detailed which is also quite rare.

Peter Qiao

23:13 25 Feb 21

I called to inquire about a possible litigation regarding a house which was purchased last year. They actually pick up the phone unlike many other firms, I had a lawyer call me back after just 2 hours. I was given a FREE consultation during which I was offered a sympathetic ear followed by informative and unbiased advices. Would certainly recommend them and call them back should I choose to proceed further.

Sabrina De Bartolo

15:41 15 Feb 21

Words cannot describe the professionalism and expertise we experienced through working with this firm. Charles Wagner is one of a kind. He provided us with sound, clear, and practical legal advice. When you are in distress, it is difficult to think clearly and make good decisions.Charles explained the law, outlined in clear language the steps in the process that where needed to be done. He was reassuring, articulate, knowledgeable and effective. Charles made the process so much easier and gave us peace of mind in a stressful but successful outcome. If I could give this firm more than 5 stars I would! Thank you!

Khaled Elzaabalawi

07:23 10 Dec 20

Wagner Sidlofsky LLP is a very highly professional and dedicated Law Firm. The team is very highly qualified with strong negotiation skills. In my personal opinion I consider my case to be a study case in Breach of contract from the seller's part , The team helped me out to achieve a very satisfactory deal through their experience and skills which saved me a very lengthy litigation. I highly recommend their consultations in any case which may require negotiation and litigation.

Karen Pillon

04:35 24 Nov 20

We have been dealing with Wagner Sidlofsky LLP for the past 3 years. I am extremely grateful to this firm for guiding & directing our family through a difficult litigation. Our case was won by highly skilled & professional litigators Bradley Philips & David Wagner. This firm has a lot of expertise in Estate Law & litigation matters.

A Google User

14:21 14 Sep 20

I recently used them. They were exceptionally efficient, and timely. Emails were ALAWYS answered within one business day, often the same day. The advice that Charles Wagner & James Dunphy gave always practical, and the options they presented were cost effective.I highly recommend Wagner Sidlofsky

A Turner

19:51 02 Sep 20

Great client service , extremely friendly , punctual and knowledgeable.No charge for a phone consult , very nice & informative.I will definitely keep them in my contact list.

Sunita Cooper

18:17 30 Jun 20

Amazing lawyers. Extremely responsive. We dealt with Gregory and David. Anytime we called they answered right away with the exception of only one or two times. The times we left a voicemail, our call was returned within the same hour or less. Both David and Gregory were both very upfront on all matters. In only my personal opinion, they are not in the business of taking advantage or wasting a client's time or money. They are realistic, straight to the point, and honest. Amazing job gentlemen! If you want professionalism, honesty and someone who will go above and beyond for your interests, this is definitely the firm to trust.

Aysha Kolyada

02:10 29 Feb 20

Within 10min of leaving a message requesting consultation on enforcement of foreign judgements in Ontraio; Mr. James Dunphy gave me a call and answered all my questions. Excellent service and highly recommended. Thank you so much for your time and knowledge. MO

21:45 11 Dec 19

Normally, I don’t write reviews. However, you are likely doing what I had to do; conducting an investigation to find the right law firm in an ocean of law firms. I live in New York and I wanted expert legal representation in Canada. I retained the firm of Wagner Sidlofsky LLP.My case involved Estate Litigation with a member of my own family in Canada and I imagine that these types of cases can be even more challenging since there are personal and emotional aspects.Following his initial assessment, Charles Wagner identified key considerations for pursuing a legal course but made clear that all decisions were mine to take without pretense of guarantees. This principal was always implicitly understood.All actions that were taken were discussed and agreed upon in alignment with our overall game plan so that I always felt matters were entirely under control. Communications were two-way. They didn’t waste my time and were very responsive to the invariable twists in the road.Wagner Sidlofsky LLP is a professional, pro-active team offering expert, value-added legal services that you might only read about - as it happens, in a review.

Miwha Stevenson

17:44 28 Oct 19

Most of us seek legal resolution as a last recourse, when we are in a dark place, feeling betrayed and disappointed by those whom we had trusted. Talking to Mr. Charles Wagner left me with a renewed hope for humanity, and I am not being frivolous when I make that statement. Not only was he deeply engaged in thinking through my situation as a legal predicament, an attentiveness that clearly stems from his professional expertise and long experience, but perhaps more importantly, he demonstrated in action how someone would help a complete stranger for no other reason than to do the right thing out of the goodness of his heart. It was much more than a professional consultation, and I will always be most grateful to Mr. Wagner for showing me an example of the kindly and the righteous.

Toras Emes

18:32 27 Oct 19

We were extremely happy with the service and first rate legal advice provided to us by the staff at Wagner Sidlofsky. We could not have been happier with the resolution of our case.

Rob Fairlie

21:00 11 Oct 19

I recently met with Mr. Wagner, Mr. Stroh, and Mr. Askew for a consultation. I was very impressed with their knowledge, professionalism and honesty. I highly recommend them to anyone in need of their services.

Rosedale Child

11:24 16 Aug 19

I am very impressed with Mr Charles Wagner.Initially, I emailed him last night at 10:09 pm asking to meet him today for consultations.He immediately replied (in 25 minutes, at 10:34 pm!) instructing me to call his assistant to book an appointment with her phone number included.When I emailed his assistant this early morning at 7:25 am, she immediately replied (at 8:26 am) before their office even opened, offering me an appointment for today at 1 pm!When I met Mr Charles Wagner (today 2019-08-15) I was impressed with his expertise in estate litigation and professionalism.Furthermore, he showed kindness and compassion for my situation and very clearly explained to me my options.He gave me excellent and most helpful referral for my specific needs.It amazed me that he genuinely cared to help me and was most helpful and honest, pleasant and patient, a great listener.I would highly recommend Mr Charles Wagner to anybody who needs excellent, experienced and friendly lawyer.Definitely a shinning 5 star rating!

Stephane Li

16:54 16 Jul 19

Hershel and I have worked together for nearly 10 years. He is extremely knowledgeable and will never shy away from a challenge. He has a great ability to read situations and anticipate what may come next. You can always count on Hershel to give you his honest legal opinion on a matter. Time over time his honesty and willingness to succeed for his client has benefited my interests and actions. I would recommend Hershel to anyone seeking legal counsel!

Sven Steindorff

14:23 02 Jul 19

Hershel Sahian joined Wager Sidlofsky LLP earlier in 2019. I have known Hershel professionally and personally for over 15 years. He is very a very patient listener and knowledgeable counsel. If you have legal issues with insurers in Canada or USA or just need some legal advice, give him a call first. I can only recommend Hershel to anyone. His vast legal experience will be on your side from day one you contact him.

Alicia Bickle

15:56 24 Jun 19

I live out of Province and was in the market for an estate litigation lawyer in Ontario. Charles Wagner returned my call promptly and was extremely professional over the phone. He was honest with me that he was not the best fit for my case and went above and beyond to provide referrals that he trusted. He was also able to provide an outline of questions that I should ask others about my case. Wonderful service and would definitely recommend to others whose cases fit their profile.

TeddyBarnett1

03:21 21 Jun 19

I had a very productive meeting with Charles Wagner, he provided legal counsel. He is very knowledgeable and experienced lawyer and very honest. He was very helpful and informative, he gave me a lot of valuable advice regarding my litigation case, I recommend him fully.Edward Barnett

Jorge Roldán

01:48 21 Jun 19

I had a very productive meeting with Charles Wagner, he provided legal counsel. He is a very knowledgeable and experienced lawyer and very honest. He was very helpful and informative, he gave me a lot of valuable advise regarding my litigation case, I recommend him.Edward Barnett.

18:22 20 Jun 19

C S

17:30 05 Jun 19

We would like to thank Mr. Matthew Stroh and Mr. Charles Wagner for their superb handling of our trust dispute.From the beginning, Matt clearly understood the dynamics in play and was able to articulate and argue the legalities of our position.The case went to mandatory mediation and on that day we were pleased that both Matt and Charles were present.As the negotiations progressed throughout the day, in mid afternoon Charles came up with brilliant strategy that brought this process to a speedy conclusion and secured an agreement with which we were very happy.We would highly recommend this firm, and in particular, Charles Wagner and Matthew Stroh to anyone in need of a strong and assertive litigation team.Christine S.

Ana Allcott

19:03 14 May 19

I met with Charles Wagner and James Dunphy today for a sensitive family matter. They understood immediately the complexities of my situation and could give a number of solutions to help me deal with the issue. It was an efficient and very helpful meeting. I would enthusiastically recommend this firm. Thank you

Joanne Brown

16:34 20 Mar 19

March 20, 2019 after contemplating making this call for many weeks I finally contacted Wagner Sidlofsky seeking advice on how to proceed with obtaining a copy of my fathers will. When I called the receptionist who was very pleasant, asked for some information and told me I would receive a call as soon as someone was available. Within 30 minutes I had the pleasure of speaking to Mr. Charles Wagner. I explained what I was after and throughout our conversation he asked questions of me that I really hadn't thought about. I appreciated the time he took to give me food for thought excellent advice.Mr. Wagners' compassion, professionalism and honesty is very much appreciated. Consoling someone crying on the phone, who he had never met. I am so glad I made the call to this law firm and I am grateful for the conversation that I had with Mr. Wagner.I would definitely contact this law firm again should I require any legal services.Thank you Charles Wagner. You made sense of it all.Kind RegardsJoanne

Areej Mirza

19:38 07 Mar 19

Our estate case was being handled by the firm. Brad Phillips was thorough in his investigation and Charles Wagner gave us direction through the case. The team handling our case - Brad & Aaron, were insightful, thoughtful and hardworking for the entire duration. I believe that they genuinely felt empathetic towards our case.

Liliana Speciale

19:41 28 Feb 19

We were clients of Wagner Sidlofsky LLP for about a year. The service was excellent and Mr. Wagner’s manner of conducting business was at our level of expectation. His team at the law firm was a great support to our litigation. We went through difficult times and Mr. Wagner’s capacity of dealing with our legal issues was great. We would recommend his law firm to everyone, he has the best support in any ways not only legal but also moral, as a friend.Thank you.Anthony P. SpecialeLiliana Speciale

Keith Marshall

16:20 06 Feb 19

David Wagner and Greg Sidlofsky and all of the staff at Wagner Sidlofsky have been exceptional. They have been professional, courteous, patient, knowledgeable and have always had our needs in mind. I wouldn’t hesitate to refer them.

Patrick D

19:42 15 Jan 19

Mr. Wagner was genuinely a big help to me. I appreciated his directness and keeping our conversation on-track so that I'd come away with the information I really needed to proceed. Much appreciated.

David Brook

11:58 24 Sep 18

Charles Wagner and his junior, Matthew Stroh couldn't have been more helpful. They explained everything clearly enough for us to understand our options in full. Thank you.

Fahra Zommers

13:02 20 Jul 18

I would like to take this opportunity to thank Charles Wagner, David Wagner and Kim Gale for the legal services you provided me. I am truly impressed with your legal expertise and your compassion. You were personable, courteous and kind. You are extremely knowledgable, competent and expeditious while still trying to save me money and time. You are honest and fair and your skills at negotiating are outstanding! Words cannot describe how thankful and grateful I am. I would highly recommend your law firm to anyone seeking legal advice or litigation services.

Irwin Meisles

19:32 07 Sep 17

I contacted Mr Wagner for assistance in drafting a will. Despite the fact that Mr Wagner is a Litigator and does not draft wills, he took the time to introduce me to another lawyer. During that conference call , he provided us with extremely valuable advice to avoid future litigation. I greatly appreciate the time and expertise that he provided free of charge. Thank you again Mr Wagner

Kao Jimmy

12:54 06 Jul 17

Charles was very professional, courteous, and honest - everything that one would expect a lawyer to be - when my family and I met with him for a consultation. He provided us with helpful information and described our options in detail, in a very pleasant manner. It would be an absolute pleasure for us to use his services in the future.

LB LB

21:39 14 Jun 17

At the recommendation of my business partner, I contacted and met with Charles Wagner who showed absolute professionalism and compassion in helping me to deal with stressfull situation to finalize the estate after losing the loved one...Unlike other law offices that I contacted recently, my concerns and questions were laid to rest with competence and straightforward recommendations. The office secretaries are efficient, fast and friendly. Thank you Charles

Practical Considerations For Enforcing U.S. Judgments in Ontario

I. Limitation Period

II. Action or Application

A. Application or Action?

B. Action Is the Only Appropriate Mechanism

C. The Latest Word

D. Conclusion

III. Jurisdiction

IV. Service

A. The Hague Convention

I. Central Authority

II. Personal Service

III. Personal Service – Additional Considerations

V. Road to Enforcement

A. Test for Recognition and Enforcement53

VI. Conclusion

A. Test for Recognition and Enforcement⁵³