JURISDICTION, SERVICE, GLOBALIZATION, PRIVATE INTERNATIONAL LAW

Service Outside ON

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  Applicable legislation:
  
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    S.92 constitution (provincial matters)
    

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  11(2) - SCJ typically has jurisdiction and power exercised historically by courts in England and ON
  
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  106 - can stay the proceedings if no jurisdiction (*remedy)
  
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  138 – multiplicity of proceedings should be avoided
  
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  Rules r.17 and Van Breda (below)
  
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  Overarching threshold issue invoked here: maintaining comity of nations
  
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    Van Breda: “The goal of the modern conflicts system is to facilitate exchanges and communications between people in different jurisdictions that have different legal systems. In this sense, it rests on the principle of comity. But comity itself is a very flexible concept.”
    
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  However, notwithstanding comity of nations, in a globalized world, for an Ontario court to take jurisdiction over a case, Ontario must have “real and substantial connection” with the subject matter of the litigation Van Breda
  
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    Underlying reasoning:
    
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      Public International Law perspective: helps maintain comity of nations, neighbour principle – idea that we respect and play well with other jurisdictions/countries, we respect the sovereignty of other nations and their courts
      
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      Private International Law perspective: Allows 2 overarching purposes of Ontario’s civil justice system (dispute resolution, behavior modification) to be fulfilled where people, goods, and services from Ontario put themselves into play across borders.
      

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  (a) real or personal property in ON
  
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  (b) administration of an estate
  
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  (c) interpretation, enforcement or setting aside of a deed, will, contract or other instrument
  
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  (d) execution of a trust
  
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  (e) mortgage on property in ON
  
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  (f) contracts: made/subject/breach in ON or parties agreed ON jurisdiction
  
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  (g) tort committed in ON
  
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  (i) injunction affecting real or personal property
  
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  (m) judgement of court outside ON
  
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  (n) authorized by statute
  
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  (p) residing or carrying on business in ON
  
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  (q) subject matter of a counter-claim, cross-claim or third party claim
  
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  (r) taxes
  
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  If not listed:
  
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    Threshold issue of Comity of nations invoked and leave of court necessary for service (on motion under r. 17.03) to serve a foreign defendant out of ON.
    
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    Will only succeed if; on the unique facts of the litigation at issue; the court finds the subject matter of such has a “real and substantial connection” to Ontario (Van Breda)