1. UNIFORMITY OF LAW AND REGULATIONS
Québec, as opposed to the other Canadian provinces, is a civil law jurisdiction. Matters of private law are regulated by the Civil Code of Québec CQLR, c. CCQ-1991 (hereafter the 'Civil Code of Québec'). Broadly, the principles and rules regarding the recognition and enforcement of foreign judgments codified in the Civil Code of Québec aim to promote the development of Québec's international relationships, particularly in commercial matters, by facilitating the procedure for recognizing and enforcing foreign judgments.
The principles and rules regarding the recognition and enforcement of foreign judgments are governed by the Civil Code of Québec and the Code of Civil Procedure, CQLR, c. 25.01 (hereafter the 'Civil Code of Procedure').
2. JUDGMENTS
2.1. Definition
In the context of the recognition and enforcement of foreign judgments, the Civil Code of Québec affords a broad scope to the concept of 'judgment', specifically employing the term 'foreign decision' in the Book Ten of the Civil Code of Québec, which outlines the rules governing private international law.
This term encompasses any decision of a tribunal, legally constituted by a foreign state, with regard to an action submitted to its jurisdiction, whether it be concerning a lawsuit, an incidental aspect thereof or a means of execution. The term also includes such legal acts as the naming of a tutor or curator, the probation of a will, as well as provisional and conservatory measures. All judgments rendered outside Québec (except those rendered by Canadian courts applying Canadian federal laws) are considered foreign.
2.2. Categories
Except as otherwise provided, foreign decisions can be enforced or recognized in Québec. The procedure to be followed is an application for recognition and enforcement made either by an originating application or an incidental application in the course of a proceeding by any of the parties. Monetary or patrimonial judgments require enforcement by way of a formal enforcement order. Personal status judgments need only be recognized and do not require enforcement. This distinction has, however, no consequences with respect to the procedural method to be used when enforcement or recognition must be made by a local court:
(a) Monetary judgments are enforceable.
(b) Judgments ordering specific performance are enforceable.
(c) Only permanent injunctions are enforceable.
(d) Arbitration awards are recognized and executed if the matter in dispute is one that may be settled by arbitration in Québec and if its recognition and execution are not contrary to public order. It is of note that the Code of Civil Procedure provides specific procedural dispositions governing the recognition and execution of foreign arbitration awards (unrelated to the provisions governing the exequatur procedure).
(e) Personal status judgments do not have to be enforced by local courts.
Although the procedure to be followed is the same, these judgments only must be recognized. Whereas the difference between enforcement and recognition is not relevant before the courts, it becomes important when the judgment must be considered by a Québec authority which is not a court of law. A foreign judgment in matters relating to personal status could thus be recognized by a local authority without following the formal procedure. The judgment would then benefit from an informal recognition within the local forum.
(f) A foreign certified adoption under the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption is not subject to exequatur proceedings (see also the Act to implement the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, CQLR, c. M-35.1.3).
(g) An award for multiple/punitive damages is enforced or recognized under the Civil Code of Québec unless the local courts consider such remedy to be contrary to public order.
(h) A judgment which is in itself a recognition of a previous judgment will, in principle, not be recognized and enforced.
(i) Foreign interim orders are generally not enforceable as they are considered to be subject to potential review or reappraisal.
The principle, however, does not apply when interim orders are for the payment of support (maintenance). Such a decision can be enforced as payments become due. It is also of note that maintenance order judgments rendered in foreign jurisdictions designated in the regulations of the Act Respecting Reciprocal Enforcement of Maintenance Orders, CQLR, c. E-19, may be enforced in Québec and do not require exequatur proceedings.
(j) A foreign judgment against the province of Québec (i.e., the Attorney General), or one of its state bodies will be enforced only when it has been validly rendered by a foreign court exercising jurisdiction as defined by Québec law. A foreign judgment against the province of Québec concerning a non-commercial or public matter will not be enforced.
(k) Judgments enforcing obligations arising from laws of taxation will neither be enforced nor recognized by local courts unless reciprocity is granted by the foreign courts. This prohibition can be extended to all foreign judgments applying foreign public laws.
2.3. Reciprocity
Reciprocity is not essential for enforcement by the local courts, except in the case of judgments enforcing obligations arising from tax laws.
3. CURRENCY REGULATIONS AND RESTRICTIONS
(a, b) There are no restrictions per se on the transfer of funds received by virtue of an enforced or recognized foreign judgment. It is possible, however, that depending on the circumstances and the nature of the suit, Canadian and Québec fiscal authorities might require the payment of customs duties on amounts awarded.
(c) Awards granting payments in foreign currency must be converted into Canadian currency at the exchange rate prevailing on the day the judgment became enforceable in the foreign state where it was rendered.
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