Enforcement of Foreign Non-Money Judgments: Pro Swing v Elta

Abstract

The spread of the real and substantial connection test adopted in Morguard Investments Ltd. v. De Savoye has been a remarkable phenomenon. Morguard lifted the phrase from the House of Lords divorce recognition case Indyka v. Indyka and applied it to the enforcement of money judgments between Canadian provinces. Subsequent lower court judgments held that the real and substantial connection standard should be extended to the enforcement of money judgments from foreign countries, and this was eventually confirmed by the Supreme Court in Beats v. Saldanha. The same test was also applied to the adjudicatory jurisdiction of the superior courts of the Canadian provinces, where it operates to police the application of service ex juris rules.

These two extensions of the real and substantial connection criterion were foreshadowed by obiter dicta in Morguard and are unsurprising. Other new uses for the test were less predictable and more controversial. In its 1993 decision in Hunt v. T&N PLC the Supreme Court of Canada constitutionalized the Morguard doctrine and held that it might be used to render provincial blocking statutes constitutionally inapplicable insofar as they might limit the reach of another province's discovery process. A decade later, in Unifund Assurance Co. of Canada v. Insurance Corp. of British Columbia, the Supreme Court found yet another use for Morguard's, real and substantial connection standard: the test could be employed to determine the territorial scope of overlapping provincial statutes