Traditionally in common law, the courts are territorial. That means that the court’s jurisdiction can only reach as far as the sovereign territorial limits. Because jurisdiction is territorial, a state’s law has no binding effect outside its jurisdiction. Consequently, the courts are reluctant to permit proceedings involving defendants residing outside the jurisdiction.
However, with the advancement of technology, international transactions now are seen as matters of routine. In a decision made by the Supreme Court of Canada, the Court held that so long as there’s a real and substantial connection to the legal forum, the court may exercise jurisdiction over the foreign defendant.*
In civil proceedings in Ontario, the court’s permission (“leave”) is still largely required for service of a defendant who resides outside Ontario. However, in many instances the required leave is no longer needed. Below is a partial list of circumstances where leave is not required when suing a foreign resident:^
- in respect of real or personal property in Ontario
- in respect of a tort committed in Ontario
- in respect of damage sustained in Ontario arising from a tort, breach of contract, breach of fiduciary duty or breach of confidence, wherever committed
- for an injunction ordering a party to do, or refrain from doing, anything in Ontario or affecting real or personal property in Ontario
- against a person outside Ontario who is a necessary or proper party to a proceeding properly brought against another person served in Ontario
- against a person ordinarily resident or carrying on business in Ontario
If the case doesn’t fall under one of the exemptions provided by the Rules, one may seek leave from the court to commence a proceeding against a foreign resident.
*Morguard Investment Ltd. v. De savoye, [1990] 3 S.C.R. 1077
^Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. 17
Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.
