Activities and Priorities Dept. Justice Private International Law 2007


a. Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Conference)

[160] This Convention, which does not yet apply in Canada, is in force in 43 States. Its purpose is to facilitate the transmission and enforcement of letters rogatory by which foreign authorities are requested to obtain evidence for use in ongoing proceedings. This Convention is a complement to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which is already in force in Canada.

[161] In October 2003, the Hague Conference convened a Special Commission on the operation of the Hague Conventions on service abroad, taking of evidence abroad and legalisation. Canada participated in the Special Commission and the Canadian delegation included Manon Dostie, IPLS, Department of Justice Canada; John Gregory, Government of Ontario; John Horn, private practitioner, British Columbia; Frédérique Sabourin and Patrick Gingras, both from Justice Québec. The Conclusions and Recommendations adopted by the Special Commission are available on the Hague Conference website.

[162] Canada sought agreement to include a federal state clause by way of protocol to the legalisation and the taking of evidence conventions. The Special Commission was of the opinion that there was insufficient priority for this to be the subject of a protocol on its own and that if there were to be a Protocol on other issues, then such a clause might be considered.

[163] Action required in Canada: When appropriate, consult on Canada’s accession.

b. Canada/United Kingdom Convention on Recognition and Enforcement of Judgments (Bilateral)

[164] This Convention, which was concluded in 1984, was the first bilateral treaty entered into by Canada in the area of enforcement of judgments. It now applies to all Canadian jurisdictions except Quebec. The Convention was modified in February 1995 by the incorporation of a reference to the 1988 Lugano Convention on Judicial Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, in order to protect Canadian interests against enforcement in the United Kingdom of judgments rendered in European countries party to the Lugano Convention on exorbitant bases of jurisdiction. The necessary implementation measures were adopted in the United Kingdom and the amendments came into force on December 1, 1995. The modification is in addition to the protection with respect to judgments from countries party to the 1968 Brussels Convention already included in the text.

[165] The 1984 Convention is used from time to time by parties in order to obtain from the courts of one of the State party the recognition of the judgments obtained from the courts of another. However, the Convention does not apply to a certain number of areas of the law, like judgments in family matters.

[166] Action required in Canada: Monitor its application; extension to Quebec when possible.

c. Canada-France Convention on Recognition and Enforcement of Judgments (Bilateral)

[167] The Canada-France Convention, the first treaty relating to enforcement of judgments negotiated between Canada and a country with a civil law tradition, was signed on June 10, 1996. Ratification by both countries is required before it can come into force. Its main advantage, similar to that under the Canada-United Kingdom Convention, is protecting Canadian interests against the enforcement of judgments rendered in European States parties to the Brussels and the Lugano Conventions on exorbitant bases of jurisdiction. In addition, the Canada-France Convention would allow for the simplified enforcement of Canadian judgments in France, not only in general civil and commercial matters, but also in family matters, including maintenance orders.

[168] Since 1996, France has transferred to the European Union an important part of its jurisdiction over the administration of justice, especially concerning the recognition and enforcement of foreign judgments. This transfer of jurisdiction could constitute an obstacle to the ratification of the Convention by France.

[169] The ULCC adopted a uniform law to implement the Convention in August 1997. Relevant documents were sent to the provinces and territories. In June 1998, Saskatchewan became the first jurisdiction to enact legislation based on the Uniform Act. In December 1999 and August 2000 respectively, Ontario and Manitoba enacted legislation to implement the Convention also based on the Uniform Act.

[170] Action required in Canada: Once a response is received from France concerning its capacity to ratify the Convention, take appropriate measures.

d. Convention on Service Abroad (Hague Conference)

[171]This Convention is in force across Canada. It also applies in 55 other States. It is aimed at facilitating the service of documents through Central Authorities established in each State party. Other means of service, such as postal service, are also available provided no objection to their use has been made.

[172]In Canada, Central Authorities have been designated in each province and territory. At the federal level, the Criminal, Security and Treaty Law Division of the Department of Foreign Affairs and International Trade serves as the Central Authority and is monitoring the application of the Convention with the input of provincial and territorial Central Authorities. The courts’ rules of practice in all provinces and territories, as well as at the federal level, have been amended to comply with the Convention.

[173]The Permanent Bureau of the Hague Conference on Private International Law published a Practical Handbook on the operation of the Convention which is available on the Conference’s website.

[174]Following a Special Commission on the operation of the Hague conventions on service abroad, taking of evidence abroad and legalisation in October 2003, where Canada was represented by Manon Dostie, IPLS, Justice Canada; John Gregory, Government of Ontario; John Horn, private practitioner, British Columbia; Frédérique Sabourin and Patrick Gingras, both from Justice Québec, the Hague Permanent Bureau worked with the help of some national experts in order to assess the necessity of amending the forms under the Service Convention and developing guidelines to complete those forms.

[175]Some issues have also been raised by provincial and territorial Central Authorities as well as by other States party to the Convention regarding different practices followed throughout the world in dealing with issues such as service fees and methods of payment.

[176] Some discussions have taken place in the past to identify options in addressing these issues, specifically with Slovakia and France. It has recently been suggested that Canadian Central Authorities and others, meet to discuss and hopefully address the issues that have been raised over the last few years.

[177] Action required in Canada: Continue to provide information and respond to requests regarding the application of the Convention. Organise a first meeting of Canadian Central Authorities to identify issues of concern related to the Convention and identify options to address these issues. Central Authorities in other States could also be invited to participate in these meetings at the outset or later on in the process.

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