Thinking Globally, Acting Locally: Recent Trends in the Recognition and Enforcement of Foreign Judgments in Canada

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The continuing evolution of the "real and substantial connection" test for the recognition and enforcement of foreign judgments remains a topic of immediate interest. Since the landmark decision in Morguard Investments and more recently in Beals v. Saldanha, Canadian jurisprudence for the recognition and enforcement of foreign judgments has been dominated by judicial and legislative unilateralism: the establishment of a domestically imposed standard (the lex fori) striving towards national uniformity informed by private international law (or conflict of laws) principles. While the "real and substantial connection" test for jurisdiction simpliciter provides a flexible analytical framework for a Canadian domestic court in assuming or declining jurisdiction over a foreign defendant, it does not completely restrict jurisdictional challenges by a non-resident (foreign) defendant. The residual discretion afforded by the forum non conveniens doctrine, coupled with other forms of jurisdictional challenges, remains a robust procedural tool in a litigator's arsenal, while the boundaries of the recognized defences of fraud, natural justice and public policy continue to be tested.

ANNUAL REVIEW OF CIVIL LITIGATION 2006, The Honourable Justices T. Archibald and R. Echlin, eds., Toronto: Thomson-Carswell, pp. 141-199, 2007

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