Having spent two of the last three weekends in Las Vegas and San Francisco, I got to thinking about cross-border legal issues. I know that’s pathetic, but bear with me.
British Columbia is one of several provinces with reciprocating jurisdictions in the US for the enforcement of judgments. (In BC, this arises pursuant to Part II of the Court Order Enforcement Act, RSBC 1996, c.78). Rather than commence a new action on the foreign judgment, a judgment from a reciprocating jurisdiction can be registered in BC, and it becomes enforceable as if it was a BC judgment. This is a valuable tool for judgment enforcement as the judgment debtor is only allowed to raise a few defences to the registration of the judgment.
For many years BC practitioners have gone merrily along under the notion that a judgment granted in a non-reciprocating US jurisdiction could be registered in a reciprocating US jurisdiction (since all US jurisdictions, like all provinces with the exception of Quebec, reciprocate with one another) and then the judgment could be registered in BC. Simple, easy, no fuss. This practice was recognized in a 1996 BC Supreme Court decision Hickman v. Kaiser as a “jurisdictional convenience”. In that case, a judgment from Texas (non-reciprocating) was registered in Idaho (reciprocating) and then registered in BC. The underlying rationale at play there, was, I think, that if the original judgment can be registered in a reciprocating state, why should a BC court to look behind that registration?
All was well for those of us who seek to enforce foreign judgments, until a 2008 decision of the BC Court of Appeal. In Owen v. Rocketinfo Inc. a judgment from Nevada (non-reciprocating) was registered in California (reciprocating) and then registered in BC. The Court held that Hickman was not determinative of the issue, so it did not need to expressly overrule the decision. I can tell you that this comes as something of a surprise to those of us who practise in the area because we all gave our clients advice about enforcing judgments based on the decision in Hickman.
The Court looked at the definition of the word “judgment” in s.28 of the Act and decided that since the reciprocating jurisdiction (in this case, California) was not the “original court”, then, the judgment from California could not be registered in BC. The rationale became, essentially, that you shouldn’t be able to do through the back door what you can’t do through the front door.
While that might give the decision some surface appeal, this seems to me to be an overly technical approach to the situation. We hear and read long soliloquies from the courts about mutual respect, deference to each other’s decisions and judicial comity. There are more and more cross-border transactions so this issue is bound to come up with increasing frequency. The Court of Appeal had a chance to demonstrate real and effective judicial comity and recognize the validity and easy enforceability of the California judgment — and it wasted that opportunity.
Is this the beginning of a new era of judicial protectionism where the enforcement of decisions of courts of competent jurisdiction become bogged down in needless procedural wrangling? With access to justice and the costs of litigation being political hot-button issues, one can only hope the Court of Appeal will not continue much further down this path.