Since 2006, Canadian common law courts have possessed the power
to enforce foreign judgments that do more than merely
award monetary damages. For example, it is now
possible to seek the enforcement, in Canada, of a foreign order
that granted an injunction or an award of specific
performance. The rules governing the enforcement of such
foreign non-monetary judgments remain somewhat opaque. A
recent ruling of the Ontario Court of Appeal,
Van Damme v. Gelber, 2013 ONCA 388, has provided some
(incremental) clarification of the applicable principles.
Historically, Canadian common law courts would
only consider enforcing foreign judgments that involved
the payment of a specified amount of money. Other forms of
foreign orders (e.g., injunctions, orders for specific
performance, etc.) could not be enforced.
That law changed with the decision of the Supreme Court in Pro Swing Inc. v Elta Golf Inc,  2 S.C.R.
612. Unfortunately, the Pro Swing ruling
provided little concrete guidance to subsequent courts regarding
the circumstances in which it would be appropriate to exercise this
new and extraordinary power.
The Van Damme decision
involved a dispute over an extremely valuable work of art.
The painting had allegedly been sold by a wealthy Canadian (living
in Monaco) to a wealthy Belgian. The painting was physically
situated in Toronto, but the parties' agreement specified that
any disputes were to be determined in the courts of New York.
The vendor denied that he had legally agreed to sell the
painting, and the purchaser commenced an action in New York to
enforce their agreement. A parallel proceeding was
commenced in Ontario, and the parties agreed on consent that the
painting would not be moved outside the jurisdiction.
After considerable jurisdictional skirmishing, the New York
court found in favour of the purchaser and issued an order for
specific performance, requiring the vendor to deliver the painting
as per the terms of the parties' agreement. This order
was affirmed on appeal in New York.
The purchaser came before the Ontario courts seeking to enforce
the New York court's order of specific performance. The
Ontario trial judge granted the request, and issued
his own order enforcing the New York award of specific
The vendor appealed on two grounds:
First, it was argued that the New York court had lacked
jurisdiction to issue the order against the vendor. As such
jurisdiction in New York is a prerequisite to the enforcement in
Ontario of the New York order, the Ontario trial judge was
required to assess the issue for himself.
Secondly, it was not appropriate for the Ontario trial judge to
enforce the New York award of specific performance because such an
equitable remedy would not have been issued by an Ontario court in
a purely domestic proceeding.
The Ontario Court of Appeal dismissed both of these
arguments. First, the Court found that, as the vendor had
clearly attorned to the jurisdiction of the New York court, that
court had possessed the requisite jurisdiction to issue
the order of specific performance. (In making this
determination, the Court of Appeal found it unnecessary to consider
the very interesting question of the extent to which the
Ontario trial judge could rely on the jurisdictional findings of
the New York court, as opposed to assessing for himself that
court's claim to jurisdiction.)
The Court of Appeal turned to the substantive question of the
propriety of an Ontario court enforcing the New York award of
specific performance. The Court of Appeal accepted that,
under the Supreme Court's Pro
Swing principles, a factor to be considered in
enforcing such a foreign order is whether –
in a hypothetical domestic proceeding governed by Canadian law
– such an award would have been made at first instance
by a Canadian court. This was not a matter that the
trial judge appeared to expressly consider.
The Court of Appeal dismissed this as an issue, however,
deciding that (i) because the parties did not expressly
raise this argument before the trial judge, he had not been
required to consider it, and (ii) in any event, had the matter come
before a Canadian court at first instance, that court
would have granted the requested order of specific
performance in all of the circumstances.
Thus, the post-Pro Swing law remains in a state of
gradual development. The one point that emerges from Van
Damme is that, if you wish to raise a defence based on
Pro Swing's amorphous principles, you must do it
expressly and not assume that the court will consider the principle
of its own volition.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).