Published In: The Advocate - Vol 59 - Part 3 - May.01 May 1, 2001

“The Enforcement of Foreign Judgments in BC: Ten Years After Morguard” Article

The following article was originally published in The Advocate in May 2001. To access a full copy, please contact John Sullivan.

The Supreme Court of Canada’s revolutionary decision in Morguard v. De Savoye [1990] 3 S.C.R. 177 (“Morguard”) was rendered a little over ten years ago, on December 20, 1990. In what has been referred to as “the most important decision on the conflict of laws ever rendered by the Supreme Court of Canada”, the court dramatically changed Canadian law as to when our courts will recognize and enforce an in personam judgment from another province. Prior to Morguard, the general rule was that such a judgment from another province would not be enforceable against a local resident, unless that resident had voluntarily submitted to the other court’s jurisdiction in some fashion. The practical result of this was that plaintiffs often had to choose the province in which they would litigate based on the location of the defendant’s assets.

The Pre-Morguard refusal to give “full faith and credit” to the decisions of other courts within our federation distinguished Canadian law from that of the American and Australian federations, both of which countries have express “full faith and credit” provisions in their constitutions. Without such language in our constitution, Canadian courts adopted the English approach to the recognition of foreign judgments, without modifying the principle to take into account the federal nature of our country, thus treating the decisions from other Canadian provinces the same as if they had been rendered by the courts of foreign countries.

All of this has changed with Morguard and the decisions that have followed it. In Morguard, the Supreme Court declared that the courts in one province should give “full faith and credit” to judgments given by the courts of other Canadian provinces and territories (subject to certain limitations), notwithstanding the absence of such wording in our constitution. In Hunt v. T. & N. plc [1993] 4 S.C.R. 289, the Supreme Court declared that the Morguard principle of “full faith and credit” is in fact an unwritten part of our constitution – a “constitutional imperative” such that provincial statutes may not conflict with it.

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