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E. Questions Concerning the Form and Content of a Canadian Scheme
1. Is New Legal Machinery Desirable?
This is the threshold question: should a scheme governing the interprovincial enforcement of non-money judgments be developed? The answer it receives may well depend on the kind of order sought to be enforced. A fairly compelling case can be made that an injunction given in family law matters to prevent molestation or harassment should be given effect outside the territory where it was first made. It is unfair and unrealistic to expect an abused spouse to re-litigate entitlement to a protective order on moving to a new province. This is example no. 1 above.
The case is at its weakest in example no. 3 where the order is to convey land. In cases of non-compliance the Saskatchewan court can order that the conveyance be signed by some other person.There is no need to invoke the assistance of the Alberta Court.
Clearly there seems to be the need for legal machinery to enforce at least some kinds of orders. A second question is whether this legal machinery should take the form of uniform legislation? Here the answer seems to be self-evident. It would be a most unhappy development if competing schemes were to arise, each with its own scope and with differing degrees of loyalty to the concept of "full faith and credit." Realistically, it is unlikely that any province or territory will wish to proceed unilaterally to put a scheme in place. Action on this issue will almost certainly involve several provinces proceeding in unison and the possibility of this happening will be greatly enhanced by the existence of uniform legislation.
2. Whose judgments should be enforced?
If a scheme were developed its operation might be confined to Canadian provinces and territories only or it might be opened to embrace truly foreign judgments and orders. The advantage of a Canada-only scheme is that concerns about whether the order sought to be enforced was obtained in conformity with Canadian notions of fairness and due process cease to be of high importance. The narrower scheme lends itself to the adoption of a full faith and credit approach. On the other hand, judgments from outside Canada will now frequently be given effect here so long as only recognition is in issue and there is no need for consequential enforcement measures.
The better view would seem to be that the scheme should be confined to Canadian judgments. It is important that governments, and the public, have confidence in the scheme. If the scheme is so open ended as to embrace judgments which call for novel remedies and which are arrived at through unfamiliar processes, that confidence could be severely shaken. The treatment to be accorded truly foreign judgments, of all kinds, may be best left to a separate project.
A related question is whether an enforcement scheme should be based on reciprocity of the kind embodied in the old Reciprocal Enforcement of Judgments Act and Uniform Reciprocal Enforcement of Maintenance Orders Act. Or should the concept of reciprocity be rejected as was done in UECJA?
3. What kinds of a judgment should be enforced?
What kinds of judgments should be recognized and enforced under the scheme? Should the scheme embrace all non-money judgments?
If the scheme should not embrace all non-money judgments what is the best approach to defining its scope? Should there be a "list" of the types of judgments and orders that are suitable for enforcement under the scheme on the basis that those, and only those, will be enforceable?
A selected list of types of orders that ought to be enforceable under the scheme would probably be limited to those situations where there may be an obvious need to invoke the powers of the court of the enforcing province and where the law currently provides no remedy. Obvious candidates are orders for specific performance, injunctions and orders for the delivery up of specific goods.
Or should a starting point be the proposition that all non-money judgments are enforceable under the scheme, subject to a list of specified exceptions setting out types of orders that are not appropriate for enforcement? This approach, taken in the UECJA and in the U.K.and Australia seems to be most widely accepted and is probably the best suited to Canada.
A list of orders that ought not to be enforceable under the scheme might include orders that are enforceable under existing legislation, such as custody orders and foreign probates.
4. Defences where enforcement is sought
What defences should be available where the enforcement of a judgment is sought under the scheme? Should one adopt a full faith and credit position and permit no defences that call into question the validity of the original judgment. Should the defendant be permitted to assert that the original court lacked jurisdiction to make the order. What if the defendant alleges some other allegedly invalidating cause?
5. Some particular issues
(a) Restraining orders in family law disputes
In most schemes for the ienforcement of judgments between territories a precondition to enforcement is some sort of process involving the enrollment or registration of the foreign judgment with the local court. UECJA is a good example of this. Does this requirement place an unnecessary burden on the person seeking enforcement where the order is one that restrains or limits contact of one spouse with the other (a protection order).
When the police are called on to intervene in a situation of spousal harassment, their response may well turn on whether a valid protection order exists. If the police are satisfied that a protection order exists, they may be prepared to act in marginal situations. If they are forced to rely solely on powers derived from the Criminal Code they may be reluctant to intervene except in cases where the potential for violence or a breach of the peace is beyond doubt. Law enforcement policy in these circumstances may vary a good deal from province to province and even within particular provincess.
Practices may also differ on the question of how the existence of a protection order is to be established in these circumstances. In some cases in may be sufficient for the
threatened spouse to produce what purports to be a copy of the order. In other places its existence may be evidenced in more formal ways. British Columbia has dealt with this question by creating a "central registry of protection orders." This database of orders is accessible to the police on a 24-hour basis to confirm whether the protection order exists, whether it is valid and what conditions it includes.
The extent to which existing practices accommodate out-of-province protection orders is unclear, but it is likely that in most, if not all, cases the police will be reluctant to act solely on an out-of-province protection order.
Even if one concludes that it is desirable to ensure that out-of-province protection orders are recognized by the police, is it possible to deal with this in a uniform fashion? This may be difficult. In British Columbia the obvious answer would be to permit the registration of out-of-province protective orders directly in the central registry as an alternative or supplement to registration in the superior court. Other provinces may require a legislative statement that gives an out-of-province protection order special status.
(b) Should there be a judicial escape hatch?
The decision to grant a non-money judgment, such as an injunction, will frequently entail a large measure of discretion on the part of the judge making the original order. When such an order is sought to be enforced in another province, a judge of the enforcing court might well balk at what he or she sees as an erroneous exercise of discretion - particularly where the sanction for non-compliance might be imprisonment of the defendant. Should there be some residual discretion in the enforcing court to refuse to enforce an out-of-province order it believes was wrongly made.46
(c) Should the scheme embrace interim orders?
A condition at common law for the enforcement of a foreign judgment for money was that the judgment had to be final. This requirement of finality continues to be reflected in legislation on the enforcement of foreign of judgments such as UECJA and the English legislation. Should be requirement of finality be retained in a new scheme?
In many instances when an injunction is sought, although the pleadings are drafted to claim a final injunction, the real battle is over whether or not an interim injunction should be granted. When an interim injunction is granted, very often no further steps are taken. Should a scheme recognize this reality and permit the extra-provincial enforcement of interim injunctions?
The same concern applies to the whole range of interlocutory injunctions that might be issued in the course of a proceeding. For example, orders may be given designed to preserve or protect the subject matter of the litigation. The court may issue a Mareva injunction to prevent the defendants disposing of specified assets. Orders such as these would not meet the test of "finality" but is that a sufficient reason to deny their enforcement outside the place where the order was made?
Under the Australian scheme an order is enforceable between states "whether or not the ... order is final."
(d) Orders by Provincial Court Judges
Some orders that are potentially enforceable under the scheme will issue out of Provincial Courts and be made by non-federally appointed judges. The most significant of these will be restraining orders in family law disputes issued under the authority of provincial family law legislation. Are there any problems in bringing these orders within the scheme? In the enforcing province, should they be enforced through the corresponding provincial court or should they be enforced through the superior courts like other out-of-province judgments.
(e) Other kinds of orders
The extended definition of "judgment" in the Australian legislation describes some other kinds of orders brought within the legislation that might also arise in Canada:
(d) an order that:
- (i) is made by a tribunal in connection with the performance of an adjudicative function; and
- (ii) is enforceable without an order of a court (whether or not the order made by the tribunal must be registered or filed in a court in order to be enforceable);
Depending on the decisions taken the conceptual content of a new Uniform Act on the Enforcement of Non-Money Judgments might closely parallel that adopted for money judgments. This raises the question whether uniform legislation on the interprovincial enforcement of non-money judgments should be cast as a stand-alone Uniform Act or be picked up in a new and extended UECJA.
A single statute would undoubtedly be more elegant. On the other hand, the provisions relating to the enforcement of non-money judgments may be perceived as more controversial. Some provinces may be quite prepared to adopt UECJA in its current form but might balk at doing so if it carried controversial "baggage."
F. Some Provisional Suggestions and a Draft Act
Many of the issues which arise with respect to non-money judgments also arose and were debated extensively by the ULC in developing the Uniform Enforcement of Canadian Judgments Act. While new legislation must accomodate a number of functional differences between judgments to which UECJA applies and non-money judgments under consideration in this report, there is no reason to believe that the ULC will reverse itself on the major policy decisions underlying UECJA. This would be difficult to defend and could conceivably be regarded as showing a lack of confidence in UECJA itself.
On the assumption that the Conference will wish to adhere to the UECJA model, draft legislation has been prepared which conforms to that model. To help focus discussion, it has been cast as a separate statute although it could be readily consolidated with UECJA. This draft is not intended to foreclose or limit discussion on any of the questions raised above that are not expressly covered in the draft or any other questions that might be raised.
This draft reflects the following assumptions:
- uniform legislation is desirable,
- the enforcement scheme should embrace judgments from Canadian provinces and territories only,
- the scheme should not be based on reciprocity,
- the scheme should adopt as a "default" position that all non-money judgments are enforceable under the scheme, with a list of specified exceptions,
- the list of exceptions should adopt the Australian list as a point of departure,
- the validity of a judgment should not be subject to attack in the enforcing province for lack of jurisdiction in the original court or any other cause, This should be done only in the courts of the place where the judgment was given.
- no "judicial escape hatch" should be provided,
- the scheme should embrace interim orders,
- the scheme should make special provision for orders aimed at curbing domestic violence,
- the scheme should not draw a distinction between judgments of provincial courts and judgments of superior courts,
- the scheme should extend to some decrees made by non-curial bodies.