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by Toronto Defamation Law and International Law lawyer, Gil Zvulony

International Comity and Reciprocity as a basis for Enforcement of US Judgments in Canada

It is extremely common for Canadian Courts to recognize and enforce US Judgments in Canada.  Although, a  judgment rendered by an American court is not automatically enforceable in Canada, the practice is routine.  (See The Enforcement of US Judgments in Canada for a detailed discussion on the laws and procedures for enforcing US Judgments in Canada.)  It is now common practice for Canadian Courts to routinely recognize and enforce American Judgments.  Does this practice apply to US defamation judgments?

The underlying principle for the enforcement of  foreign judgments in Canada is a principle called: comity. Comity is the idea that one jurisdiction will extend certain courtesies to other nations (or other jurisdictions within the same nation), particularly by recognizing the validity and effect of their executive, legislative, and judicial acts. The term refers to the idea that courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another jurisdiction. Part of the presumption of comity is that other jurisdictions will reciprocate the courtesy shown to them.

The Supreme Court of Canada discussed the idea of comity in the leading case of Morguard Investments Ltd. v. De Savoye [1990] 3 S.C.R. 1077. Justice LaForest stated that comity is:

an idea based not simply on respect for the dictates of a foreign sovereign, but on the convenience, nay necessity, in a world where legal authority is divided among sovereign states of adopting a doctrine of this kind…”Comity” in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other.  But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

Simply put, Canadian courts will for the most part enforce a US civil judgment in Canada because US Courts will for the most part enforce a Canadian Judgment in the US courts, and vice versa.

The Recognition and Enforcement of Canadian Defamation Judgments in the US

To this author’s knowledge, Canadian defamation judgments are not enforceable in the United States.  The Ontario Court of Appeal accepted the legal opinion of a US jurist that stated: “Courts in the District of Columbia and in other American jurisdictions have uniformly held that libel judgments rendered in foreign courts where the law does not comport with the principle set forth in New York Times Co. v. Sullivan and its progeny are repugnant to the public policy of those jurisdictions and must therefore be denied recognition.”  See Bangoura v. Washington Post, 2005 CanLII 32906 (ON CA).  See this article for a discussion of US law and its position with respect to the enforcement of Canadian Defamation Judgments.

The principle set forth in New York Times Co. v. Sullivan was succinctly put by the Supreme Court of Canada in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 as:

[The principle]  that the existing common law of defamation violated the guarantee of free speech under the First Amendment of the Constitution.  It held that the citizen’s right to criticize government officials is of such tremendous importance in a democratic society that it can only be accommodated through the tolerance of speech which may eventually be determined to contain falsehoods.  The solution adopted was to do away with the common law presumptions of falsity and malice and place the onus on the plaintiff to prove that, at the time the defamatory statements were made, the defendant either knew them to be false or was reckless as to whether they were or not.

Therefore, it arises that, when it comes to the enforcement of Canadian defamation judgments  in the United States, there is a lack of comity.  The US judicial system consider’s Canada’s defamatory laws “repugnant” and will thus refuse to recognize a law based on Canadian defamation Laws.

Canadian Defamation Laws a Balancing Act

Canada’s defamation laws are rooted in the common law.  They share many similarities to other common law jurisdictions.  They seek to balance the right of free speech with the right to an unsullied reputation.

One principle difference between these common law countries and the United States is that the common law jurisdiction have refused to adopt the principle  set forth in New York Times Co. v. Sullivan .  The Supreme Court of Canada in Hill (supra) was asked to adopt the New York Times principle, and explicitly chose not to.  The court cited the words of Diplock J. in Silkin v. Beaverbrook:

Freedom of speech, like the other fundamental freedoms, is freedom under the law, and over the years the law has maintained a balance between, on the one hand, the right of the individual . . . whether he is in public life or not, to his unsullied reputation if he deserves it, and on the other hand . . . the right of the public . . . to express their views honestly and fearlessly on matters of public interest, even though that involves strong criticism of the conduct of public people.

Should Canadian Courts Enforce US Defamation Judgments?

USA Judgment enforcement in CanadaShould Canadian court’s enforce a United States judgment that is based in defamation? This author is not aware of any Canadian judicial decisions that deal directly with this issue.  Should the issue arise in the future, a potent argument against the enforcement of such a judgment would go as follows:  1)  The rational basis for enforcing  a US judgment in Canada is comity. 2) A key indicator  of comity is when courts from different jurisdictions will enforce each other’s judgments.  3) The United States will not enforce a Canadian defamation judgment because  it treats Canada’s defamation laws as repugnant.  4) Therefore there is no comity between Canada and the United States with respect to speech laws.  5) Therefore, there is no rational basis for enforcing a US defamation judgment in Canada.