July 20 2015
International litigation can be very tricky and daunting. If you do not follow the right procedures your case has a good chance of failing on a procedural technicality or a point of law. Similarly, if you are outside of Canada and are being sued in Canada, there are steps you can take to protect yourself.
If you are faced with a situation where you want to sue someone who is outside of Canada, or you are being sued outside of Canada, there are a number of important things to keep in mind.
If you are suing:
Court permission: Depending on your situation, you may need the Court’s permission to serve a Defendant outside of Ontario. It is critical to know if your case falls under one of the exceptions that allows you to serve without the Court’s permission, or if you need to bring a motion before the court to get permission to serve. Otherwise, you might spend hundreds of dollars trying to serve them only to find out you did not have permission to do so.
How to serve: Because you are serving a defendant outside of Ontario, you need to make sure that you are compliant with the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. This means you have to know and understand the process for service in the country where the Defendant resides.
Timelines: Because the Defendant is outside of Ontario, it has an additional 20 to 40 days to deliver a statement of defence.
If you are being sued:
Attornment: If you have little or no connection to Ontario and want to challenge the Plaintiff’s right to make a claim against you in Ontario, you must make sure that you don’t unintentionally attorn to Ontario’s jurisdiction. This means that you must make sure to participate only after you make it clear that you wish to reserve your right to challenge the Plaintiff’s jurisdiction later during the litigation process.
Jurisdiction: If you have ties to Ontario but believe that Ontario is not the proper jurisdiction, then you must make an argument as to why. Ontario courts have developed a test that can be used to decide jurisdiction on a case-by-case basis. We’ll explain this test in detail in a future post.
For example, we recently represented a client who has always lived and worked in Ontario (the “Ontario Company”). They purchased equipment worth over 1,000,000.00 dollars (CAD) from a company outside of Canada (the “International Company”). After over a year of failed troubleshooting and attempts by the International Company to fix their equipment, the Ontario Company decided it would be better off buying different equipment and returning the old equipment to the International Company. Negotiations were unsuccessful, so the Ontario Company turned to litigation.
Beginning litigation can be stressful and full of uncertainties, but in this case it was even more so because the International Company was outside of Canada. The Ontario Company was told by others that they had no chance of reaching an agreement because the International Company was so far away.
That’s where we stepped in to negotiate a resolution for our client.
This article is for informational purposes only and does not constitute legal advice. If you wish to seek legal advice, contact us today. 613-747-2459