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Enforcing foreign judgments before appeal - Marevas and stays.

Independence Plaza 1 Associates LLC v Figliolini [2017] FICR 8

Marevas and stays pending appeal.

Judgment creditors can have a problem knowing when to start foreign enforcement proceedings after they have obtained a judgment. If they leave it too late, the foreign assets might have disappeared; if they start too early, the foreign court might say the judgement is not final and cannot be enforced.

In Independence Plaza 1 Associates LLC v Figliolini [2017] FICR 8, the Ontario Court of Appeal has said that in the ordinary course, judgment creditors will wait until the appeal process has run its course before commencing proceedings to enforce the judgment in Ontario. However, the creditor may apply for a Mareva injunction in Ontario before a proceeding on the foreign judgment is commenced in and while the foreign appeal process is still running its course.

Conversely, if the creditor obtains an Ontario judgment based on the foreign judgment before the appeal process is exhausted, the creditor may apply for a stay of the Ontario judgment pending exhaustion of the foreign appeals.

The court said that the two-year limitation period does not begin to run under the Limitations Act 2002 until the creditor learns that it is appropriate to commence proceedings in Ontario to enforce the judgment. This will usually be when the appeal process is exhausted but could be even later, when the creditor learns that the debtor has assets in Ontario to execute against. It is very fact dependent.

Read the full head note here: [2017] FICR 8.