Taking a Swing at Pro Swing Inc v Elta Golf Inc

Imagine being a plaintiff at the very second that a successful outcome has been announced: you feel overjoyed that the scales of justice have finally tipped in your favor and relief that the money and effort you’ve expended over the past months and years have not been in vain. You are finally free to move on with your life.

Now imagine that your judgment is for some kind of non-monetary relief: an injunction, an order for specific performance or the like, and you are told that you cannot enforce this type of judgment across any international borders. Therefore, if you were faced with a defendant who skips across the border, you would have to start the entire litigation process again in the new jurisdiction to ensure that the defendant respects the judgment against him.

This was the unfortunate state of the common law before the Supreme Court of Canada (“SCC”) changed everything in the case of Pro Swing Inc v Elta Golf Inc, 2006 SCC 52. Until then, foreign non-monetary judgments were simply unrecognized in Canada. Unanimously, the SCC declared that it was time to update the common law and enforce foreign non-monetary judgments. Although I agree that the old common law rule no longer makes sense in an increasingly globalized world, I disagree with the fact that it was the judiciary who stepped in to make this change.

Throughout the SCC’s decision, we are alerted to the fact that there have been many provincial law reform proposals and studies that recommend the law be altered to recognize foreign non-monetary judgments, and yet no legislative action has been taken. The SCC therefore concludes that a need for change exists. I agree. The SCC also concludes that it is in the best position to make such an incremental change to the common law. I respectfully disagree. Regardless of how sensible the recommendations are, the fact that the executive has obviously been alerted to the problem and has chosen not to act is telling. Should the courts step in where the executive has (we must assume purposefully) rejected the idea of changing an established, long standing rule? It is my belief that they should not.

My position is strengthened when we look at how potentially wide-spread the implications of this decision are. Non-monetary judgments affect an individual’s rights in a way that simple monetary judgments do not (by for example, enjoining someone to do something or forcing them to take a specific course of action) and are therefore subject to stronger public policy concerns. Asking a court to decide whether or not to enforce a foreign order to produce certain documents despite glaring differences in our domestic privacy laws is a much different thing then asking a court to enforce a monetary debt that arose from foreign proceedings. The former requires a judge to engage more deeply in the delicate analysis of whether a foreign country’s law offended our Canadian sense of public policy or fairness since more is at stake.

Although our judges are empowered to invoke public policy as a reason to refuse enforcing a foreign judgment (monetary or otherwise), it remains an open question as to how many would feel confident and comfortable enough to make pass such bold judgment on another country’s legal system. I believe it is more likely that judges put in this difficult situation would hesitate and resort to finding overly technical reasons to avoid enforcing judgments that they believe are in contravention of our public policy. We can see this trend in the case law leading up to Pro Swing, and even in Pro Swing itself.

In Uniforêt Pâte Port-Cartier Inc v Zerotech Technologies Inc (1998), 50 BCLR (3d) 359, for example, the British Columbia Supreme Court refused to give effect to a Quebec judgment ordering production of documents since it found the order to be insufficiently precise. The alleged imprecision arose since the Quebec court omitted to state who should pay for the photocopying costs of production, when production should occur and since were some ambiguities surrounding a few of the documents to be produced. One has to ask whether not specifying who shoulders the burden of photocopying costs in a judgment should be enough to completely nullify the judgment altogether.

Similarly, in Pro Swing, the SCC (by a slim majority) decided that the foreign injunction in question was too vague to be enforceable. The only missing factor in that foreign judgment for injunction, however, was the explicit mention of whether it had effect outside of the United States.

One has to wonder if any foreign judgment could possess the necessary level of detail the courts require before declaring it to be precise enough to enforce. Such timidness on behalf of judges is understandable given the great public policy considerations at stake with each non-monetary judgment. However, this uncertainty does nothing to help the current state of the law. Rather, I believe that it actually hinders the development of the law since it muddies the legal waters, making it harder for parties to know their rights, either in the aim of settling or pursuing legitimate claims. Further (and perhaps more dangerously) it allows the executive to ignore a complex issue that they are clearly more equipped to grapple with.