Only BC Courts Can Adjudicate on Real Property in BC
There is frequent need for parties who obtain judgments in jurisdictions outside of BC to come to BC seeking to enforce their judgments against assets of judgment creditors held in BC. The general framework for doing so is found in the Court Order Enforcement Act, R.S.B.C. 1996, c. 78 (the “COEA”). The COEA generally provides that the judgment be for a dollar amount from a reciprocating jurisdictions to be enforceable as though it were a judgment in BC. Such jurisdictions include all the provinces except Quebec, Australia, certain states in the US and certain European countries.
In the recent decision of Lanfer v Eilers, 2020 BCSC 1325 (CanLII) the court was called upon to enforce a judgment obtained in a reciprocating jurisdiction, Germany. The judgment in question held that certain property in British Columbia was entitled to be inherited by the plaintiffs through a so-described inheritance contract. The subject property was in foreclosure and the plaintiffs registered a certificate of pending litigation claiming an interest in the property.
The plaintiffs sought to have BC’s courts enforce the German order to transfer the property to the plaintiffs on payment of €21,864. The defendant resisted the application, relying on the long-standing principle that Canadian courts will not enforce foreign judgments relating to or affecting an interest in land.
The Court in Lanfer v Eilers explored the applicable law. It noted that, in addition to the COEA, the common law provides that foreign judgement can be recognized and enforced in Canada where such judgments:
- are for a debt or definite sum of money other than taxes, fines or penalties; and
- are final and conclusive;
- are rendered by a court of competent jurisdiction;
- are obtained without fraud;
- stem from proceedings that comply with the Canadian concept of natural justice; and
- are not be contrary to public policy.
While it was conceded that there were no issues with whether the German judgment was properly obtained or determined, the defendant argued and the Court agreed that that the plaintiffs sought to enforce a judgment which would require ordering parties to execute documents to facilitate the conveyance of the subject property and the Land Title Office to participate in same. The Court was not prepared to grant such a judgment.
The Court held that the principle that Canadian courts will not enforce foreign judgments relating to or affecting an interest in land could not be disturbed in the case before it or that there had been any evolution of that principle which opened the door to argue an exception to the principle. The Court’s views and the law were summarized in para. 46 as follows:
Judgments affecting the title to or possession of real property should stand on a different footing from judgments enforcing rights as between individuals. Each country is defined by reference to its geographical boundaries and the land within those boundaries. Each country is entitled to exclusive jurisdiction over the land within its boundaries and no other country is entitled to encroach on that jurisdiction. Therefore, it is logical to require that decisions affecting the title to or possession of real property be made in accordance with the laws of the country where the property is situate.
The Court dismissed the plaintiff’s claim, cancelled their certificate of pending litigation and ordered costs against the plaintiffs.
Lanfer v Eilers is a reminder that enforcement of foreign judgments in British Columbia can be a complex process. Parties seeking to enforce foreign judgments should consider first whether their judgment is generally enforceable as one for cash and then considered whether the judgment meets all the other tests of enforceability. Timely legal advice can assist in such evaluations and other remedies available to enforce a foreign judgment once registered.