Practitioners faced with the prospect of having to seek a Canadian court’s recognition and enforcement of an award of injunctive relief by a foreign court should take note of the Supreme Court of Canada’s decision in Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52 (Nov. 17, 2006).  In Pro Swing, the Supreme Court of Canada indicated that Canadian courts, under the appropriate circumstances, may depart from Canada's traditional common law rule that its courts will only recognize final monetary judgments – as opposed to orders granting injunctive or other equitable relief – entered by a foreign court, and possibly extend recognition to foreign orders granting equitable relief.

The majority opinion in Pro Swing provides an extensive, though not exhaustive, list of factors Canadian courts should consider in determining whether to recognize a foreign court’s grant of equitable relief. 

Among the myriad of factors to be considered are: (1) whether the order is a final order, as opposed to an order granting temporary or preliminary injunctive relief; (2) the clarity and specificity of the equitable relief granted; (3) comity concerns, such as whether the equitable relief granted by the foreign court is available under Canadian law or whether other remedies – letters rogatory, for instance – are available to the party seeking recognition of the foreign order; (4) whether the order is penal or quasi-criminal in nature when construed under Canadian law; (5) whether recognition of the order will result in a conflict of laws; and (6) whether the foreign order specifically indicates that it is intended to extend beyond the borders of the foreign sovereign in which the order was originally entered. 

The majority opinion in Pro Swing further makes it clear that the decision to extend recognition to foreign orders granting equitable relief is guided by same discretionary principles applicable to the determination of whether equitable relief should be entered in the first instance.

Ultimately, the majority opinion in Pro Swing did not extend recognition to the foreign orders at issue.  The opinion does, however, signal an important change in Canadian law regarding extending recognition to foreign equitable awards, thus providing parties with another possible forum in which to seek the recognition and enforcement of such awards.  It would be interesting to hear from readers who have sought to obtain Canadian recognition of foreign equitable awards in light of Pro Swing.