Enforcing Foreign Judgments, Letters Rogatory and Letters of Request in Canada - Cross-border Litigation Lawyers

Dependable Legal Counsel for Managing Estates

Estate administration in Ontario is a multifaceted legal process overseen by the appointed executor or administrator. Compliance with the legal requirements outlined in legislation such as the Estates Administration Act is paramount. Daniel Walker has guided numerous executors through various estate administration scenarios, ensuring adherence to legal obligations. Even seemingly straightforward estates can expose executors to potential litigation challenges.

Probate serves as a pivotal step in estate administration, verifying the validity of the will and the authority of the appointed executors or trustees. Its timely completion is crucial, as delays can impede the distribution of estate assets. Additionally, probate offers protection to executors or trustees from personal liability. However, attempts to avoid probate fees, known as estate administration tax, are not uncommon. Strategies like making adult children joint tenants on bank accounts or properties aim to circumvent these fees. It’s advisable to seek guidance from a probate lawyer when navigating probate-related matters.

The landmark case of Pecore v. Pecore, 2007 SCC 17 established a presumption that joint accounts between parents and adult children are held in trust for the estate beneficiaries, unless evidence proves otherwise. This underscores the importance of careful estate planning and legal counsel to avoid disputes.

Estate administration and planning demand expertise from experienced estate lawyers like Daniel Wlaker, who regularly deals with estate litigation, administration, and mediation. Errors during estate administration can escalate into litigation, emphasizing the need for diligent legal guidance.

In the event of an estate administration dispute in Toronto, consulting a Toronto estate litigation lawyer is advisable, as mediation is mandatory for estate disputes in certain parts of Ontario. Estate litigation lawyers at Bobila Walker Law possess the knowledge and skills to navigate complex estate law issues and safeguard your rights effectively.

The management of estates and trusts entails navigating a multitude of legal and financial intricacies. Should you encounter obstacles in the administration of an estate post a demise or in managing a trust, our assistance is readily available.

Our team of attorneys has substantial expertise in the administration of high-value and intricate estates, trust administration, and fiduciary accounting. To facilitate your obligations, we offer guidance on various aspects, including:

Overseeing the administration of high-value or complex trusts or estates.
Managing the investment and distribution of trust funds.
Facilitating the transfer of trusts to other jurisdictions or countries.
Facilitating the settlement of debts leading up to the distribution of assets to beneficiaries.
Handling the finalization of trusts or estates.

Canada adopts a liberal and practical approach to recognizing and enforcing foreign judgments.

Many provinces have reciprocal enforcement legislation to simplify the process for judgments from certain foreign jurisdictions. For instance, Ontario’s Reciprocal Enforcement of Judgments (U.K.) Act provides a streamlined process for enforcing UK judgments under a bilateral enforcement treaty.

Enforcing Foreign Judgments in Canada

To enforce a foreign judgment in Canada, you must initiate a proceeding in the superior court of the province where enforcement is sought. For smaller amounts, the small claims procedure may be an option. Note that the Federal Court of Canada does not have jurisdiction over foreign judgment enforcement.

Proceedings can take the form of an action or an application:

• Action: A formal process initiated by a statement of claim, involving discovery and trial.
• Application: A simpler, faster process based on affidavit evidence, typically used when material facts are not in dispute. Applications are generally preferred for enforcing foreign judgments.

Quebec-Specific Considerations

Quebec, operating under a civil law system, has unique substantive and procedural requirements for enforcing foreign judgments, differing from the common law approach in other provinces.

Understanding the nuances of provincial laws and procedures is essential for successful enforcement.

Enforcing Foreign Monetary Judgments in Canada: Common Law Principles

Canadian courts recognize and enforce foreign monetary judgments to uphold international comity. A foreign judgment will generally be enforced without re-examining its merits if it meets these key criteria:

1. Real and Substantial Connection: The jurisdiction where the judgment was issued must have a meaningful connection to the action or parties involved. Factors like participation in the foreign proceedings, residence, or a contractual agreement to submit to jurisdiction often satisfy this requirement.
2. Defined Sum: The judgment must specify a clear monetary amount.
3. Final and Conclusive: The judgment must represent the final decision of the issuing court.
4. Limitation Period: The enforcement action must begin within the applicable limitation period, which varies by province or is defined by reciprocal enforcement legislation.

Canadian courts do not require a connection between the dispute or defendant and the enforcing Canadian court. Instead, jurisdiction is established through proper service under the court’s rules.

Defences Against Enforcement

Defendants can resist enforcement only on limited grounds:

• Natural Justice: If the foreign proceedings denied procedural fairness.
• Fraud: If the judgment was obtained through fraudulent means.
• Public Policy: If enforcement would violate Canadian public policy.

By meeting these conditions, foreign monetary judgments are enforceable in Canada, ensuring consistency with international legal principles.

Recognition of Foreign Non-Monetary Judgments in Canada: Common Law Considerations

Canadian courts may recognize and enforce foreign non-monetary judgments, such as injunctions, as long as they are not quasi-criminal or penal (e.g., contempt orders). Beyond the “real and substantial connection” test, courts apply additional scrutiny to ensure fairness and practicality.
In a case involving a trademark injunction from Ohio, the Supreme Court of Canada emphasized the need for balance, noting that enforcing non-monetary orders requires more judicial involvement than simply collecting a debt.

Factors Affecting Enforcement

The court evaluates these key questions before recognizing a foreign equitable order:
1. Are the terms clear and specific enough for the defendant to understand their obligations?
2. Is the scope of the order reasonable, and does the issuing court retain the power to modify it?
3. Is enforcement the least burdensome remedy for the Canadian justice system?
4. Does the order impose unforeseen obligations on Canadian litigants?
5. Are third parties affected by the order?
6. Is the use of judicial resources consistent with what is allowed for domestic cases?

Practical Applications

Recent cases demonstrate the application of these principles:

• The Ontario Superior Court recognized a California injunction preventing copyright infringement in a computer game.
• The court also enforced a Virginia judgment prohibiting the unlawful use of trademarks and unauthorized broadcasting of television channels.

These decisions highlight Canada’s approach to balancing international comity with domestic fairness when enforcing non-monetary judgments.

Limits on Challenging Foreign Judgments in Canadian Courts

Canadian courts strongly uphold the principle of comity and typically will not permit parties to re-litigate the underlying claims or defences of a valid foreign judgment. Exceptions are rare and limited to three common law defences:

Denial of Natural Justice: The foreign process violated Canadian principles of procedural fairness, such as proper notice, a fair opportunity to present a defence, or unbiased adjudication.
Fraud: Fraudulent actions that were undetectable through reasonable diligence before the foreign judgment was issued.
Public Policy: The judgment is based on foreign laws that offend Canadian morality or comes from a corrupt foreign court.

Courts in Canada generally enforce foreign judgments from jurisdictions with similar litigation standards, such as the U.S., U.K., and Australia, without subjecting them to substantive scrutiny. This approach reflects Canada’s commitment to fairness and international legal cooperation.

Canadian courts adopt a liberal stance when recognizing and enforcing foreign judgments, guided by the principle of comity. While the process differs for monetary and non-monetary judgments, the overarching goal is to respect and uphold valid decisions from other jurisdictions.

For tailored guidance on recognizing and enforcing foreign judgments in Canada, consult our foreign judgment enforcement lawyers in Toronto at Bobila Walker Law.

Letters Rogatory & Letters of Request

A letter rogatory, or “letter of request,” is a formal written communication sent by a court in one country to a court in a foreign country requesting the assistance of the foreign court in obtaining testimony or documentary

or other evidence of a witness within the jurisdiction of the foreign court.

Canada is not a signatory is not a party to the Hague conventions on civil procedure, including the 1970 Hague.

Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. This convention governs the procedure by which lawyers can facilitate the compulsion of evidence for use in cross-border civil and commercial proceedings.

In Germany (Federal Republic) v. Canadian Imperial Bank of Commerce (“CIBC Case”), the court noted that letters rogatory are “the medium whereby one state, speaking through its courts, requests the judicial assistance of another state and its courts. To invoke international comity the request must originate from a foreign court or tribunal and not merely from a party to foreign legal proceedings.”

Where a party seeks to take evidence from an unwilling party in a foreign jurisdiction, a formal request for judicial assistance must be made by the party’s domestic court to a court in the foreign jurisdiction. Such a request is called a letter rogatory or letter of request. Once the Court approves the request, the Applicant will submit to the Court a draft letter that is then reviewed and revised by the Court.

Enforcing Letters of Request in Canada: Key Points

The process for enforcing a letter of request in Canada depends on the subject matter of the dispute and is typically governed by either the Canada Evidence Act or the evidence act of the province where the witness resides.

Canadian courts have the discretion to:

• Order the examination of a witness or the production of documents for use in a foreign trial.
• Enforce requests regardless of whether the witness is a party to the foreign action or simply holds relevant information.

Courts generally comply with letters of request for trial evidence and, in some cases, for pre-trial proceedings, subject to the applicable statutory authority and procedural rules. However, they may limit the scope of questions or document production based on local evidence and procedural rules.
For specific guidance, consult legal professionals familiar with the relevant jurisdiction.

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our Team

Daniel Walker – Managing Partner

DANIEL

WALKER

MANAGING PARTNER

Daniel Walker is the Managing Partner of Bobila Walker Law and a seasoned litigator whose practice focuses on complex estate, civil, and family disputes. With a reputation for navigating high-stakes matters involving fiduciary breaches, multi-jurisdictional assets, and intricate legal frameworks, Daniel combines legal precision with strategic insight across several intersecting practice areas.

Estate, Trusts & Fiduciary Litigation

Daniel’s principal area of expertise lies in wills, trusts, and estate litigation. He has extensive experience litigating matters involving:

Contested will challenges
Breaches of fiduciary duty and trust
Power of attorney disputes
Guardianship and capacity litigation
Dependant’s relief claims under the Succession Law Reform Act
Complex intestacies
Trust rectification and variation applications
He also routinely acts as an estate trustee or executor on behalf of domestic and international clients and serves as Power of Attorney for Property and Personal Care.

Passing of Accounts (Contentious & Non-Contentious)

Daniel advises beneficiaries and fiduciaries on passing of accounts applications, with a focus on tracing assets, scrutinizing expenditures, and litigating claims of misappropriation or negligent administration.

Complex Family Law & Cross-Border Litigation

Daniel brings unique expertise to family law disputes:

High-value family litigation involving international property, hidden assets, and jurisdictional disputes between Canada and Europe.
Advises clients through every phase of separation, divorce and related disputes.
Handles contested and collaborative matters alike, including division of family property (from personal assets to complex business interests), child-custody and support issues under the Federal Child Support Guidelines, and spousal maintenance.
Enforcement of prenuptial, postnuptial and cohabitation agreements, represents clients in mediations, arbitrations and trials, and manages post-judgment enforcement or variation applications to ensure court orders remain fair as circumstances change.

German-Speaking Legal Services

Fluent in German, Daniel frequently advises clients on civil litigation, probate, and estate matters with ties to German-speaking jurisdictions. He also speaks Serbian, Croatian, and Bosnian, and is equipped to manage cross-border mandates involving multiple legal systems.

Professional Background

Prior to entering private practice, Daniel served as a Senior Policy Advisor at the Department of Foreign Affairs and International Trade (DFAIT) in Ottawa. During law school, he worked with:

The in-house legal team at Rogers Communications
The Office of the Privacy Commissioner of Canada

Daniel regularly appears before the Ontario Superior Court of Justice, including the Estates List and Commercial List.

Guardianship and Power of Attorney Disputes

Daniel Walker is a trusted Ontario litigator whose practice is devoted to adult guardianship and capacity law. Drawing on extensive courtroom experience and a deep understanding of the Substitute Decisions Act, he guides families and individuals through the complexities of contested guardianship applications with clarity, compassion and precision. Whether an urgent interim order is required to secure a vulnerable adult’s property or comprehensive preparations must be made for a full hearing, Daniel navigates every procedural step and ensures his clients know what to expect at each stage.

Estates Administration

Drawing on deep expertise in the Estates Administration Act and the Estates Act, he oversees probate applications, ensures timely compliance with statutory obligations and protects fiduciaries from personal liability. Recognizing that even straightforward estates can give rise to contested issues—whether challenges to joint-account strategies, claims under Pecore v. Pecore or disputes over executor conduct—Daniel provides proactive counsel to prevent costly delays and litigation.

Beyond routine administration, Daniel advises on the management of high-value and complex estates and trusts, including investment oversight, cross-border transfers and the settlement of debts prior to distribution. He drafts and negotiates mediation agreements in mandatory estate-dispute mediations, handles fiduciary accounting and, where necessary, advocates for clients in contested proceedings. With a focus on preserving estate value and safeguarding trustee and executor interests, Daniel delivers dependable legal counsel tailored to each client’s unique situation.

Civil and Commercial Litigation

Daniel Walker is a seasoned civil and commercial litigator who advocates for individuals, corporations and partnerships in complex business disputes. Drawing on a thorough command of Ontario’s Rules of Civil Procedure and decades of courtroom experience, he guides clients through high-stakes shareholder oppression and partnership breakdown claims, negotiates and litigates breaches of contract and other commercial obligations, and resolves contentious real-estate and property-ownership disputes. Whether you face allegations of defamation that threaten your reputation or professional-negligence claims that endanger your practice, Daniel marshals tailored strategies—combining vigorous trial advocacy with pragmatic settlement negotiations—to protect your interests and achieve commercially sensible outcomes. From case inception through appeal, he manages every procedural step, coordinates expert evidence, and provides clear advice so that you always understand your options and the likely path forward.

Elder Abuse & Elder Law

With extensive experience under the Substitute Decisions Act and related legislation, Daniel Walker combines proactive planning—drafting carefully tailored powers of attorney and guardianship applications—with decisive legal action to secure urgent relief where seniors’ safety or assets are at risk.

Whether you’re concerned about unexplained injuries, unauthorized financial transactions or signs of neglect in a care facility, Daniel provides clear, compassionate guidance every step of the way, coordinating with medical and financial experts to investigate allegations, freeze suspect transactions and restore decision-making authority to the vulnerable adult. His priority is ensuring that every client and family he serves obtains prompt, practical protection and peace of mind.

Whistleblower Protection & Crisis Management

Daniel provides legal support to whistleblowers, professionals, and institutions navigating:

Professional discipline proceedings
Matters of national security and confidentiality
Public sector accountability under the Freedom of Information and Protection of Privacy Act (FIPPA)
International immunity and state actor litigation

With deep experience handling workplace-related and service-related human rights disputes, Daniel guides clients through every stage of the process: from initial fact-gathering and document preparation to mediation, Tribunal hearings and, if necessary, appeals. He pursues remedies ranging from financial compensation and reinstatement to public-interest orders requiring systemic policy changes. By blending pragmatic risk management with rigorous advocacy, Daniel ensures that his clients remain compliant with Canada’s shifting human rights landscape and that those who suffer discrimination obtain prompt, effective redress.

MARIA BOBILA

Partner

LORRAINE SEALE

Senior Estates Law Clerk

ANANTA ROOPNARINE

Family Law Clerk

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