As lawyers who are members of the Bar of Quebec, who practise in the province of Quebec and who appear before the courts of Quebec, naturally, most of the court judgments we deal with are judgments issued by the courts of Quebec. However, our clients will sometimes have to deal with judgments issued against them by courts from outside Quebec, whether from another Canadian province, from the United States, or from the courts of another foreign country.
The issues that we will have to deal with in such circumstances are: can and how do such judgments have effect upon persons residing in Quebec or upon their property?
Under our laws, it is possible for a court judgment issued outside of the province of Quebec to be enforced or executed within the province of Quebec. To illustrate how, we will invent an example.
In our example, the Tremblay Co., with a head office in Montreal, signs a contract with the Calgary Consulting Co., based in Calgary, Alberta, for the purchase of 100 000.00$ in consulting services. The agreement was signed while the president of the Tremblay Co. was in Alberta and the agreement also specified that the laws of Alberta would apply to the contract between the Calgary Consulting Co. and the Tremblay Co.
Furthermore, the contract provided that, for the purposes of the contract, the Tremblay Co.’s address would be at its branch office in Edmonton, Alberta. The branch office essentially has a couple of desks, a couple of computers and 2 part-time employees. As well, the Calgary Consulting Co. performed its contractual obligations in Alberta, in Calgary and Edmonton.
Following the conclusion of the contract and the delivery of the consulting services, the Tremblay Co. failed to pay the 100 000.00$ fee to the Calgary Consulting Co...
The Calgary Consulting Co. then sued the Tremblay company for the 100 000.00$ in an Alberta court and served the lawsuit at the Tremblay Co.’s Edmonton office. The Tremblay Co. failed to defend the lawsuit of even attempt to defend or appear in the lawsuit and a default judgment was granted against the Tremblay Co. ordering it to pay 100 000.00$ to the Calgary Consulting Co.
Of course, the Calgary Consulting Co. wanted to enforce the judgment, but aside from a couple of desks and 2 computers, the Tremblay company has no assets in Alberta and in fact no assets anywhere in Canada except in the province of Quebec. In the province of Quebec, the Tremblay Co. has extensive assets, including cash, land, buildings, investments, etc.
The Calgary Consulting Co. is now entitled to bring that court judgment from Alberta and attempt to enforce it and execute it in the province of Quebec. It cannot do so, however, simply with the judgment itself, but it must in fact start new procedures in the province of Quebec. It must institute, before the Quebec Superior Court, an originating application to recognize and enforce the decision rendered by the Alberta court.
It must attach to its lawsuit in the province of Quebec a certificate from the competent public official in the province of Alberta to state that the Alberta decision is no longer capable of being appealed and/or that it is final or enforceable.
The role of the Quebec court in such type of application is to assure itself that the judgment of the Alberta Court was properly granted, but it is not the court’s role to necessarily look into the merits of the original decision. So, for example, the Calgary Consulting Co. must prove that the original lawsuit was duly served on the Tremblay Co. in accordance with the laws of Alberta. The Tremblay Co. could, however try to prove that, owing to the circumstances, it was unable to acquaint itself with the lawsuit that instituted the procedures in Alberta or was not given sufficient time to offer a defence.
Legitimate Jurisdictions for a Lawsuit
A Quebec court could also refuse to recognize a decision if it came to the conclusion that the Alberta Court did not have jurisdiction. However, under Quebec law, the place where a contract is signed, as well as the place where a contract is carried out, as well as the place where a defendant has a domicile are all legitimate jurisdictions for a lawsuit. In the case of the contract between the Calgary Consulting Co. and the Tremblay Co., we know that the contract was signed in Alberta and that the parties stipulated that the laws of Alberta would apply. Furthermore, the Tremblay Co. chose Edmonton as its domicile for the purposes of the contract. Any of these factors may be sufficient for a Quebec court to recognize that an Alberta court would have jurisdiction.
Our laws specifically provide that a Quebec court must confine itself to verifying whether the decision that it is being requested to recognize or enforce meets the requirements of Quebec law, without considering the merits of the decision. In other words, it does not put itself in the place of the judge who heard the original case.
Of course, this is just one example and there are many exceptions to these rules and many variations upon which decisions can be or cannot be enforced or recognized within Quebec. The essential point to remember is that the foreign judgment cannot be enforced by itself, but must have a judgment issued by a Quebec court that orders it and allows it to be enforced. In that sense, one can never take for granted that a foreign judgment has no effect in the province of Quebec. In fact, a judgment from another province, from the United States or from any other country can possibly be enforced in the province of Quebec. There are many factors to look at and the issues must be analysed in detail just like any other serious legal issues.
Does that mean that all persons are susceptible to the jurisdiction of a foreign court? Not necessarily.
Extraterritorial Jurisdiction of Courts
To look at another example, perhaps a court situated in France would like to prosecute a Canadian citizen and a resident of Quebec for a criminal offence committed in the province of Quebec, against a victim who was, at the time of the crime and currently, a citizen of France. It may very well be that under the laws of France, a French court could prosecute, convict and punish such a person resident in the province of Quebec.
However, in order to be able to impose that punishment, that resident of Quebec would actually have to be in France and, unless he voluntarily travels to France to be subject to the jurisdiction of the French court, there would be no other choice for the government of France but to request extradition. Extradition could even be requested after a French court would have tried, convicted, and even decided an appropriate punishment for that resident of Quebec.
But would a Quebec or Canadian Court agree to extradition? The short answer is, not necessarily and more likely, not probably. In order for a Quebec or Canadian Court to agree to extradition in such circumstances, it would have to come to the conclusion that, under Canadian and Quebec law, the French court would be an appropriate jurisdiction. In such circumstances a Canadian court may very well come to the conclusion that the French court would not have jurisdiction and therefore could refuse extradition. The Canadian court could come to the conclusion that any such crime committed in Quebec, at that time, by a Quebec resident, on any victim, even a French national, could be properly investigated, and prosecuted, and any accused could be convicted if possible and punished if necessary within Quebec. There would be little reason to surrender jurisdiction to the French court. And in fact, there would be such minimal connection to a French court that a Canadian court may very well consider that a French court would not be a convenient jurisdiction to try the case. Therefore, in such circumstances, should the French government request the extradition of the Quebec resident who is convicted in a French court, there is a very good chance that extradition would be refused and the French court’s judgment would not have application nor effect in Canada.
The extraterritorial jurisdiction of courts can, in some cases, be justified especially where no other court may have a practical jurisdiction. To cite another example, it might be appropriate to prosecute, in Canada, Canadian sex tourists who travel to poor, 3rd world countries to exploit minors, in situations where the local law enforcement is incapable of dealing with the problem. In such cases, prosecuting Canadian residents in Canada for crimes committed overseas would, in all likelihood, be a justifiable solution. On the other hand, attempting to prosecute in France, a Canadian citizen, residing in Canada, for crimes allegedly committed in Canada, where there already is in Canada a fully functional criminal justice system, is less justifiable and less likely to be permitted by Canadian courts in terms of agreeing to extradite such an accused. In other words, either the Canadian criminal justice system will deal with such a person, or it will not, but it will not in all likelihood turn over the suspect for prosecution or punishment in France.
For any questions regarding a foreign judgment of any sort that might apply to you, it is extremely prudent to consult your lawyer promptly.
Franco Tamburro, Attorney at law
Alepin Gauthier Avocats Inc.