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2 - Scope of the model Act
A number of points must be discussed on this topic.
2.1. Public law judgments ordering the payment of money
From the perspective of Quebec civil law, there is no fundamental reason for dealing differently with administrative, tax or even criminal law judgments ordering the payment of money. Provided that the condition of consistency with public order (to be defined more fully by including, for example, statutes of immediate application or such statutes as the Foreign Extraterritorial Measures Act, S.R.C., c.F. 29, as suggested in the second paragraph of art. 3520 of the draft Quebec Civil Code 4) or certain rules pertaining to the exclusive jurisdiction of the recognizing court are retained, it is conceivable that the proposed model Act would also cover public law judgments, which would be in keeping with USA v. Ivey (1995), 130 D.L.R. (4th) 674. Such a decision would clearly require an amendment of s. 2(1)(b) of the UECJA. We therefore disagree with our colleagues on this point (report, par. 18-20).
On this subject, as our colleagues mention (report, para. 29), we do not consider it essential to require that an administrative tribunal's decision be converted into a court judgment to be recognized: it is enough that the tribunal act in the exercise of a judicial function (characterization issue), as provided for in s. 1(b) of the UECJA.
2.2. Provisional measures: injunctions, etc.
Like our colleagues (report, para. 26-28), we consider it appropriate for the Canadian courts to have the authority to give effect to foreign provisional measures. The Conference should therefore also consider the possibility of including provisions to this effect in the model Act (the CJPTA includes such injunctions, according to the comments).
2.3. Final judgments ordering to do or refrain from doing an act
The concept of an order for the payment of money is not broad enough, at least not from the civil law perspective. More generally, the UECJA, unlike the CJPTA, does not recognize final judgments ordering someone to do or refrain from doing an act in estate matters, such as a judgment ordering someone to sell something: we consider it necessary to deal with this in a model Act on foreign judgments and to expand the scope of the UECJA.
2.4. Maintenance orders
For the excellent reasons given by our colleagues (report, par. 21-25), with which we agree, it is our opinion that the Uniform Law Conference should consider including such foreign judgments in a model Act.
2.5. Patrimonial effects of marriage (matrimonial regime, primary regime, etc.)
It seems to us that certain judgments concerning the patrimonial aspects of the family could be dealt with in the model Act, as in the CJPTA (s. 9(1)). This would include judgments dealing with the patrimonial effects of marriage upon dissolution of marriage or otherwise.
2.6. Transactions and notarial acts
In most civil law countries, a judgment is not necessary to enforce an authentic act, and it would be quite appropriate to provide for this in the model Act, as in the Lugano Convention. Such a provision could be based on the following proposition:
[translation] Transactions and authentic acts enforceable in the place of origin shall be considered foreign court judgments in so far as these conditions are applicable to them.
We will now give more thorough consideration to the content of the rules a model Act might contain.