Suing or Being Sued Across Borders: How Ontario Courts Handle Cross-Border Disputes

Lawsuits do not always involve parties who live in the same province. A Toronto business may need to sue a supplier based in British Columbia, Florida, or Dubai. An Ontario resident injured while travelling abroad may want to bring a claim at home. A foreign corporation doing business in Ontario may find itself named as a defendant in a proceeding it did not expect. These situations raise a set of legal questions that most people never think about until they are personally involved in one: Can an Ontario court hear this case? How do you serve someone who lives in another country? Can the defendant force the case to be moved elsewhere? And whose law applies?

These questions fall under an area of law known as conflict of laws, or private international law. For anyone involved in cross-border litigation in Ontario, the answers to these questions determine whether the case can proceed at all, and if so, on what terms.

This guide explains how Ontario courts decide whether they have jurisdiction over disputes involving parties outside the province, how that jurisdiction can be challenged, and what happens once the jurisdictional question is resolved. It is written for business owners, individuals, and in-house counsel who need a practical understanding of how these issues work.

When Does This Issue Come Up?

The question of whether an Ontario court can hear a case involving a foreign party arises in a wide range of situations. Common examples include a contract dispute where one party is based in Ontario and the other is based in another province or country, a tort claim (such as personal injury, fraud, or defamation) where the wrongful conduct or the harm crossed provincial or international borders, a shareholder or corporate dispute involving a company with operations or directors in multiple jurisdictions, a product liability claim where the product was manufactured abroad but caused injury in Ontario, and a real estate or commercial transaction involving property or assets located in Ontario but owned or controlled by foreign parties.

In each of these situations, the Ontario court must satisfy itself that it has jurisdiction before it can hear the case. If it does not, the proceeding will be dismissed or stayed, and the plaintiff may need to start over in another jurisdiction.

The jurisdictional question is not merely procedural. It is constitutionally required. The Supreme Court of Canada has held that Canadian courts must exercise appropriately restrained jurisdiction in accordance with the principles of order and fairness. A court that asserts jurisdiction where none properly exists risks producing a judgment that is unenforceable, that wastes the parties’ resources, and that undermines the integrity of the Canadian legal system. For this reason, both plaintiffs and defendants have strong incentives to get the jurisdictional question right at the outset.

Jurisdiction Simpliciter: Does the Ontario Court Have the Power to Hear This Case?

The first question in any cross-border dispute is whether the Ontario court has jurisdiction at all. This is called jurisdiction simpliciter. It is a threshold question: if the court does not have jurisdiction, nothing else matters.

In Canadian law, a court has jurisdiction over a defendant in three broad circumstances. First, if the defendant consents to the jurisdiction of the court, whether by agreement (such as a forum selection clause in a contract) or by taking steps in the proceeding that amount to an acceptance of the court’s authority (called attornment). Second, if the defendant is “based” in the jurisdiction, meaning they are present, resident, or domiciled in Ontario, or (in the case of a corporation) carry on business there. Third, if there is a real and substantial connection between the subject of the dispute and Ontario.

The third category is the most important and most litigated in cross-border cases, because it is the basis on which Ontario courts assert jurisdiction over defendants who are not based in the province and have not agreed to litigate here.

The Real and Substantial Connection Test

The real and substantial connection test is the constitutional standard that governs when a Canadian court can assert jurisdiction over an out-of-province or foreign defendant. It was developed through a series of Supreme Court of Canada decisions in the 1990s, beginning with Morguard Investments Ltd. v. De Savoye and Hunt v. T & N plc, which established that the exercise of jurisdiction must accord with the principles of order and fairness.

The test was refined significantly by the Ontario Court of Appeal in Muscutt v. Courcelles in 2002, which formulated an eight-factor test for determining whether a real and substantial connection existed. That test was criticized for being too indeterminate and for blending the analysis of jurisdiction simpliciter with the separate question of forum non conveniens.

The Van Breda Framework

In 2012, the Supreme Court of Canada addressed these concerns in Club Resorts Ltd. v. Van Breda, which is now the leading case on the real and substantial connection test for claims in tort.

The Supreme Court held that many of the grounds on which defendants can be served outside the province create a presumption that a real and substantial connection exists. Where such a presumption applies, the defendant bears the burden of rebutting it. Where no presumptive connecting factor applies, the plaintiff may still establish jurisdiction by demonstrating that, in the particular circumstances of the case, a real and substantial connection exists.

For cases in tort, the Supreme Court identified four presumptive connecting factors: the defendant is domiciled or resident in the province; the defendant carries on business in the province; the tort was committed in the province; and a contract connected with the dispute was made in the province.

These presumptive connecting factors are not exhaustive. The Supreme Court expressly left open the possibility that new connecting factors could be recognized in future cases, based on their similarity to the recognized factors, their treatment in the case law and statute law, and their treatment in the private international law of other legal systems with a shared commitment to order, fairness, and comity. In practice, however, subsequent courts have taken a restrictive approach to recognizing new presumptive connecting factors.

Although the Supreme Court articulated these factors specifically for claims in tort, lower courts have applied them across other types of claims as well, including contract disputes and equitable claims. The factors overlap significantly with the categories for service outside Ontario found in Rule 17.02 of the Ontario Rules of Civil Procedure and with the connecting factors listed in the Court Jurisdiction and Proceedings Transfer Act, which has been adopted by several other provinces.

Rebutting the Presumption

Where a presumptive connecting factor is established, a presumption of jurisdiction arises. The burden then shifts to the defendant to rebut that presumption by demonstrating that, despite the presence of the connecting factor, there is in fact no real and substantial connection between the dispute and Ontario. This can be done where, for example, the defendant carries on business in Ontario but the events giving rise to the claim occurred entirely in another jurisdiction and have no connection to the defendant’s Ontario operations. The defendant must show on a balance of probabilities that the connecting factor, in the particular circumstances of the case, does not justify the exercise of Ontario jurisdiction.

What “Carrying on Business” Means

The second factor, carrying on business in the province, has generated significant case law. The Supreme Court held in Van Breda that this requires “some form of actual, not only virtual, presence in the jurisdiction, such as maintaining an office there or regularly visiting the territory of the particular jurisdiction.” Simply advertising in the province, or having a website accessible from Ontario, is generally not enough. There must be a meaningful physical or operational presence. In the Van Breda companion case of Charron v. Club Resorts Ltd., the court found that the defendant’s commercial activities in Ontario “went well beyond promoting a brand and advertising” because its representatives were in the province on a regular basis and it maintained an office there.

Importantly, the business giving rise to the dispute must have some connection to the defendant’s activities in the province. If a corporation carries on business in Ontario but the events giving rise to the claim occurred entirely elsewhere and are unrelated to the Ontario operations, the presumption of jurisdiction may be rebutted.

The Commission of a Tort in the Province

The third factor, the commission of a tort in the province, is the most straightforward basis for jurisdiction in tort cases. Following the Supreme Court’s earlier decision in Moran v. Pyle National (Canada) Ltd., a tort may be considered to have been committed in Ontario if either the wrongful act or the resulting harm occurred there. This means that a product manufactured abroad that causes injury in Ontario, or a fraudulent misrepresentation made from abroad but relied upon in Ontario, may ground jurisdiction in Ontario.

A Contract Connected with the Dispute

The fourth factor, a contract connected with the dispute, applies where the tort claim arises out of or is connected with a contract that was made in the province. This covers situations of concurrent liability, where the same facts give rise to both a breach of contract claim and a tort claim, and where the plaintiff entered into the contract in Ontario in reliance on representations made to them there.

Service Outside Ontario

Once a plaintiff establishes that a real and substantial connection exists, the procedural mechanism for bringing a foreign defendant into the Ontario proceeding is service outside Ontario, historically known as service ex juris.

Rule 17.02 of the Ontario Rules of Civil Procedure lists the categories of cases in which a plaintiff may serve an originating process on a defendant outside Ontario without leave of the court. These categories include situations where the claim relates to real property in Ontario, a contract made or breached in Ontario, a tort committed in Ontario, damages sustained in Ontario arising from a tort or breach of contract wherever committed, and various other categories involving injunctions, trusts, and statutory proceedings.

These categories serve as a rough guide to the situations in which an Ontario court has jurisdiction, but they are not exhaustive. Following Van Breda, a plaintiff may also establish jurisdiction by demonstrating a real and substantial connection that falls outside the listed categories, though they will bear the burden of proof in doing so.

Where a defendant is served outside Ontario, that defendant may challenge the court’s jurisdiction by bringing a motion to set aside the service or to stay the proceeding. This is typically done under Rule 17.06 of the Ontario Rules of Civil Procedure.

Challenging Jurisdiction: The Defendant’s Options

A defendant who is served with an Ontario proceeding but does not believe Ontario is the appropriate forum has several options.

Motion to Set Aside Service

The defendant may bring a motion to set aside service on the basis that the originating process was not properly served or that the case does not fall within any of the categories for service outside Ontario and that there is no real and substantial connection between the dispute and Ontario.

Motion for a Stay Based on Forum Non Conveniens

Even if the Ontario court has jurisdiction, the defendant may argue that Ontario is not the most appropriate forum for the dispute and that the proceeding should be stayed in favour of another jurisdiction. This is the doctrine of forum non conveniens.

Challenging Jurisdiction Without Attorning

Importantly, a defendant who appears in an Ontario proceeding solely for the purpose of challenging the court’s jurisdiction does not, by that appearance alone, submit to the court’s jurisdiction. This is explicitly provided for in Rule 17.06 of the Ontario Rules of Civil Procedure and has been confirmed by the courts. A defendant can challenge jurisdiction without being taken to have accepted it. However, if the defendant takes steps in the proceeding beyond challenging jurisdiction, such as filing a defence on the merits, cross-examining on affidavits, or seeking discovery, this may constitute attornment, which is treated as consent to the court’s jurisdiction.

Forum Non Conveniens: Should the Ontario Court Decline to Hear This Case?

Forum non conveniens is the doctrine under which a court that has jurisdiction may nevertheless decline to exercise it on the basis that there is a more appropriate forum for the dispute. It is a discretionary analysis, and the relief granted is a stay of proceedings, not a dismissal. This preserves the possibility of reviving the Ontario proceeding if the alternative forum turns out to be unavailable or if the defendant does not comply with the terms of the stay.

The Test

The Supreme Court of Canada addressed the test for forum non conveniens in Amchem Products Inc. v. British Columbia (Workers’ Compensation Board). The question is whether there is another available forum, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and the ends of justice.

In cases where the defendant was served locally in Ontario, the burden rests on the defendant to persuade the court that another forum is clearly more appropriate. If the court is satisfied that another forum is prima facie more appropriate, the burden shifts to the plaintiff to show that there are special circumstances by reason of which justice requires that the stay be denied. In borderline cases, the plaintiff’s choice of forum will be respected.

Different Burdens for Local and Foreign Defendants

The burden of proof on a forum non conveniens motion differs depending on whether the defendant is a local defendant (served in Ontario) or a foreign defendant (served outside Ontario).

For local defendants, the presumption is that the defendant’s home court is an appropriate forum. It is reasonable to start from the position that an Ontario court is an appropriate place to hear a case against a person who lives or does business in Ontario. The defendant must overcome this presumption by showing clearly that another forum is more appropriate.

For foreign defendants, the analysis is different. The Ontario Court of Appeal held in Frymer v. Brettschneider that the plaintiff must justify its choice of forum when challenged by a defendant who has been served outside the province. This is because cases involving foreign defendants are cases of “assumed jurisdiction,” where the court exercises jurisdiction not because the defendant has strong ties to Ontario, but because the dispute itself has a connection to Ontario. The plaintiff who has brought a foreign defendant into Ontario must be prepared to explain why Ontario is the appropriate place for the dispute.

The distinction between local and foreign defendants is made on the basis of residence, not merely on the basis of where service was effected. A defendant served in Ontario while passing through on vacation is not a “local” defendant for this purpose.

The Factors

Courts consider a broad range of factors in the forum non conveniens analysis. The Court Jurisdiction and Proceedings Transfer Act, which has been cited by the Supreme Court of Canada as a useful reference, lists the following factors: the comparative convenience and expense for the parties and their witnesses in litigating in each forum; the law to be applied to the issues in the proceeding; any non-exclusive jurisdiction agreement between the parties; the desirability of avoiding a multiplicity of legal proceedings; the desirability of avoiding conflicting decisions in different courts; the enforcement of an eventual judgment; and the fair and efficient working of the Canadian legal system as a whole.

This list is not exhaustive, and courts may consider other relevant circumstances. Some factors may be more significant than others depending on the facts of the particular case. The analysis is cumulative: the court must weigh all relevant factors together to determine whether the alternative forum is clearly more appropriate.

Comparative Convenience of Witnesses and Evidence

Courts routinely assess where the relevant witnesses and documents are located. If the key witnesses to the events are all located in another jurisdiction, and the evidence is principally located there as well, this favours the alternative forum. However, the availability of modern technology for virtual testimony and electronic document production has somewhat diminished the weight of this factor in recent years.

The Applicable Law

The law that will govern the substantive issues in the dispute is a relevant factor. If the dispute is governed by the law of another jurisdiction, this may favour hearing the case in that jurisdiction, both for reasons of convenience (avoiding the need to prove foreign law) and because the courts of that jurisdiction are better positioned to apply their own law. However, this factor is not determinative on its own. Ontario courts routinely apply foreign law when required to do so.

Multiplicity of Proceedings

Where related proceedings are already underway in another jurisdiction, or where multiple parties would need to litigate the same issues in different courts, the desirability of avoiding duplicative litigation may favour consolidation in a single forum. This factor can work in either direction: it may favour granting a stay if the dispute is already being litigated elsewhere, or it may favour declining a stay if multiple related claims are already proceeding in Ontario.

Legitimate Juridical Advantage

One factor that frequently arises is whether granting a stay would deprive the plaintiff of a legitimate juridical advantage. This can include a longer limitation period in Ontario, the availability of a cause of action that does not exist in the alternative forum, or access to procedural mechanisms (such as discovery or class proceedings) that are not available elsewhere. Courts take this factor seriously, because granting a stay that effectively prevents the plaintiff from pursuing a meritorious claim would be unjust. However, an advantage gained by commencing a proceeding in a forum that is not otherwise appropriate is likely the product of forum shopping, which courts will discourage.

Terms on a Stay

A court may impose conditions on the granting of a stay to protect the plaintiff. Common conditions include requiring the defendant to accept service in the alternative forum, waive any limitation defence that would not have applied in Ontario, consent to the jurisdiction of the alternative forum, and make documents and witnesses available. If the defendant fails to comply with these conditions, the Ontario proceeding may be revived.

Forum Selection Clauses

Many commercial contracts include a clause specifying the jurisdiction in which disputes are to be resolved. These are called forum selection clauses or jurisdiction agreements, and they can be either exclusive (requiring disputes to be heard only in the nominated forum) or non-exclusive (permitting disputes to be heard in the nominated forum without precluding other forums).

Where the parties have agreed to an exclusive forum selection clause that nominates a jurisdiction other than Ontario, an Ontario court will generally give effect to that agreement and stay any proceeding commenced in Ontario. The party seeking to avoid the clause bears the burden of showing “strong cause” why the court should not enforce it. This is a high threshold, reflecting the principle that commercial parties who freely negotiated a jurisdiction clause should be held to their bargain.

The strong cause test requires the party resisting the clause to demonstrate that it would be unjust or unreasonable to enforce it. Factors that courts consider include whether the clause was freely negotiated or imposed on a take-it-or-leave-it basis, whether there has been fraud or overreaching, whether enforcing the clause would deprive the party of a remedy that would otherwise be available, and whether the nominated forum is a fundamentally inappropriate place to resolve the dispute.

For consumer contracts and employment agreements, courts may apply different standards. A forum selection clause in a standard-form consumer contract that would require a consumer to litigate in a distant foreign jurisdiction may not be enforced if it effectively deprives the consumer of access to justice. The Supreme Court of Canada addressed this issue in the context of arbitration agreements in TELUS Communications Inc. v. Wellman, and the principles apply by analogy to forum selection clauses.

Conversely, where the forum selection clause nominates Ontario as the exclusive forum, the Ontario court will generally decline a stay in favour of a foreign jurisdiction.

The Hague Choice of Court Convention

Canada acceded to the Hague Convention on Choice of Court Agreements, which came into force for Canada in 2017. The Convention provides a uniform framework for the enforcement of exclusive choice of court agreements in international civil or commercial matters between parties to the Convention. Where the Convention applies, a court in a contracting state that has been designated by an exclusive choice of court agreement must hear the case, and courts in other contracting states must decline jurisdiction. Judgments issued pursuant to such agreements are entitled to recognition and enforcement in other contracting states. The Convention adds an international dimension to the enforceability of forum selection clauses that may be relevant in disputes between Canadian and foreign parties.

Attornment: Submitting to the Court’s Jurisdiction

Attornment occurs when a party takes steps in a proceeding that amount to an acceptance of the court’s jurisdiction. Once a defendant attorns, they can no longer challenge the court’s jurisdiction.

The classic examples of attornment include filing a statement of defence without reserving the right to challenge jurisdiction, bringing a motion on the merits of the case, and participating in discovery or other procedural steps. The key question is whether the defendant’s conduct demonstrates an intention to accept the court’s authority over the dispute.

As noted above, a defendant who appears solely to challenge jurisdiction does not attorn. But the line between challenging jurisdiction and participating in the proceeding on the merits is sometimes fine, and defendants must be careful not to cross it inadvertently.

The Court Jurisdiction and Proceedings Transfer Act

Several Canadian provinces have adopted the Court Jurisdiction and Proceedings Transfer Act (CJPTA), a uniform statute designed to bring consistency and clarity to the law of jurisdiction across Canada. Ontario has not adopted the CJPTA, but it applies in provinces such as British Columbia, Saskatchewan, and Nova Scotia. Where one party is based in a CJPTA province and the other is based in Ontario, the statutory framework in the CJPTA province may affect the jurisdictional analysis.

The CJPTA provides a statutory list of presumptive connecting factors, including that the defendant is ordinarily resident in the province, that the proceeding concerns a contract made in the province, that the proceeding concerns a tort committed in the province, and various other connections. These factors overlap significantly with the Van Breda presumptive connecting factors. The CJPTA also provides for forum non conveniens stays and for the transfer of proceedings between provinces where another province is a more appropriate forum.

Parallel Proceedings and Lis Pendens

It is not uncommon for disputes with a cross-border dimension to result in proceedings being commenced in more than one jurisdiction at the same time. The plaintiff may sue in Ontario while the defendant commences a competing action in another province or country. Or both parties may independently commence proceedings in their respective home jurisdictions.

Where parallel proceedings are underway, the Ontario court must consider whether to stay the Ontario action in favour of the foreign proceeding. The analysis overlaps with forum non conveniens but also engages the related concept of lis pendens (or litispendence), which refers specifically to the existence of a pending action between the same parties involving the same subject in another jurisdiction.

The existence of parallel proceedings is a significant factor in the forum non conveniens analysis because it raises the risk of duplicative litigation, inconsistent results, and wasted judicial resources. Courts will consider which proceeding was commenced first, how far each proceeding has advanced, and whether one forum is clearly more appropriate than the other.

However, the mere fact that a proceeding was commenced first in another jurisdiction does not automatically require the Ontario court to yield. The Ontario court will assess the totality of the circumstances, including whether the foreign proceeding was commenced strategically (for example, as a pre-emptive strike to gain a tactical advantage) and whether the Ontario proceeding would provide a more just and efficient resolution.

Anti-Suit Injunctions

In some cross-border disputes, one party may seek an anti-suit injunction, which is a court order restraining the other party from commencing or continuing proceedings in a foreign jurisdiction. Anti-suit injunctions are an exceptional remedy and are granted sparingly, because they directly interfere with the jurisdiction of a foreign court.

The Supreme Court of Canada addressed anti-suit injunctions in Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), holding that such an injunction may be granted where the foreign proceeding is oppressive or vexatious and where it would be inequitable to allow it to continue. The court must be satisfied that the injunction is necessary to protect the integrity of its own proceedings and that the balance of convenience favours granting the order.

In practice, anti-suit injunctions are most commonly sought where a party has commenced a foreign proceeding in breach of an exclusive forum selection clause, or where a party is pursuing duplicative proceedings in a foreign jurisdiction for the purpose of harassing or pressuring the other party. Courts are cautious about granting these orders because of the potential for inter-jurisdictional friction and because of the principle of comity, which requires courts to respect the jurisdiction and processes of foreign courts.

Jurisdiction Over Corporate Defendants

Cross-border disputes frequently involve corporate defendants, and the question of whether an Ontario court has jurisdiction over a foreign corporation raises distinct considerations.

Carrying on Business in Ontario

As noted above, a foreign corporation that carries on business in Ontario may be subject to the jurisdiction of Ontario courts. However, the threshold for “carrying on business” requires more than a virtual presence. The corporation must have some form of actual presence in Ontario, such as maintaining an office, having employees or agents regularly present in the province, or conducting substantial commercial activities here. A foreign corporation that merely advertises in Ontario, sells products online to Ontario customers, or has a website accessible from Ontario is generally not carrying on business in Ontario for jurisdictional purposes.

Extra-Provincial Licensing

Foreign corporations that are required to obtain an extra-provincial licence to carry on business in Ontario under the Ontario Business Corporations Act or the Extra-Provincial Corporations Act will typically have designated an address for service in the province. Such corporations are generally amenable to service in Ontario and will be treated as local defendants for jurisdictional purposes.

Parent Companies and Subsidiaries

The fact that a subsidiary corporation carries on business in Ontario does not automatically create jurisdiction over the parent company. Courts respect the principle of separate corporate personality. Jurisdiction over the parent must be established independently, unless the corporate structure is being used as a vehicle for fraud or unless the subsidiary is acting as an agent of the parent in Ontario in respect of the matters giving rise to the dispute.

The Timing and Procedure of Jurisdictional Challenges

Defendants who wish to challenge the jurisdiction of an Ontario court must act promptly. While there is no fixed deadline, unnecessary delay in bringing a jurisdictional challenge may be treated as attornment, particularly if the defendant has taken substantive steps in the proceeding in the meantime.

The standard procedure is for the defendant to bring a motion under Rule 17.06 of the Ontario Rules of Civil Procedure to set aside service or to stay the proceeding on jurisdictional grounds or on the basis of forum non conveniens. This motion should be brought before the defendant delivers a statement of defence, or at the same time, with a clear reservation of the right to challenge jurisdiction.

The motion is typically supported by affidavit evidence addressing the connections between the dispute and the competing forums. Both parties may cross-examine on the affidavits. The motion is decided on a balance of probabilities, though the evidence must clearly establish the relevant connections (or the absence of them).

The decision on a jurisdictional motion is discretionary and fact-specific, and appellate courts will show deference to the motion judge’s determination unless it is based on an error of law or is clearly wrong.

Choice of Law: Which Law Applies?

A related but distinct question from jurisdiction is choice of law: once the Ontario court has accepted jurisdiction, whose law will it apply to resolve the substantive issues in the dispute?

The answer depends on the nature of the claim. For contract disputes, Ontario courts generally apply the law chosen by the parties in their contract. The parties’ choice of law is respected as an exercise of contractual autonomy, provided the choice is bona fide and legal, and the contract has some connection to the chosen law. In the absence of a choice of law clause, the court will apply the law of the jurisdiction with which the contract has the closest and most real connection.

For tort claims, the general rule is that the law of the place where the tort was committed (the lex loci delicti) applies. This principle was affirmed by the Supreme Court of Canada in Tolofson v. Jensen, which held that the law of the place of the tort should generally govern issues of liability and damages. Where the tort crosses jurisdictional boundaries, the analysis may become more complex, but the starting point remains the law of the place where the wrongful act or the harm occurred.

For property disputes, the law of the place where the property is situated (the lex situs) applies. This is a well-established principle that applies to both real property and tangible personal property.

It is entirely possible, and indeed common, for an Ontario court to have jurisdiction over a dispute but apply the law of another province or country to resolve it. This is a routine feature of cross-border litigation and is not a reason to decline jurisdiction. Ontario courts regularly receive expert evidence on foreign law and apply it where required. However, if the governing law is that of another jurisdiction, this is one factor that the court will consider in the forum non conveniens analysis.

Service on Foreign Defendants: Practical Considerations

Serving an originating process on a defendant outside Ontario involves specific procedural requirements that vary depending on where the defendant is located.

For defendants in other Canadian provinces, service may generally be effected under interprovincial service arrangements. For defendants in countries that are parties to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention), service must generally be effected through the Central Authority designated by that country or by other methods permitted under the Convention. For defendants in countries that are not parties to the Hague Service Convention, the court may authorize alternative methods of service.

In all cases, valid service is a prerequisite to the court exercising jurisdiction over the foreign defendant. If service is defective, any resulting judgment may be unenforceable.

Recognition and Enforcement of Foreign Judgments

A practical consideration in any cross-border case is whether the resulting judgment will be enforceable. There is little value in obtaining a judgment in Ontario if the defendant has no assets in Ontario and the judgment cannot be enforced where the defendant’s assets are located.

Canadian courts recognize and enforce foreign judgments on the basis of the real and substantial connection test. If the foreign court had a real and substantial connection to the dispute, the resulting judgment will generally be recognized and enforceable in Canada, subject to limited defences such as fraud, denial of natural justice, or public policy. This framework was established by the Supreme Court of Canada in Morguard Investments Ltd. v. De Savoye and extended to international judgments in Beals v. Saldanha.

The Defences to Enforcement

A party resisting enforcement of a foreign judgment in Ontario may raise several defences. These include that the foreign court did not have jurisdiction on a basis that would be recognized in Canada; that the judgment was obtained by fraud; that the defendant was not given proper notice of the proceedings or was denied the opportunity to present its case (denial of natural justice); that the judgment is contrary to Canadian public policy; and that the judgment conflicts with another judgment that is entitled to recognition in Canada. These defences are narrow, and Canadian courts have generally been willing to enforce foreign judgments from courts that had a genuine connection to the dispute.

Enforceability as a Strategic Consideration

The enforceability of the eventual judgment is an important strategic consideration in any cross-border case. A plaintiff who obtains an Ontario judgment against a defendant with no assets in Ontario and no assets in a jurisdiction that would enforce the Ontario judgment has, in practical terms, won nothing. Conversely, a defendant with substantial assets in Ontario may have difficulty resisting enforcement of a foreign judgment that was issued by a court with a real and substantial connection to the dispute, even if the defendant did not participate in the foreign proceeding.

Conversely, when a plaintiff obtains a judgment in Ontario against a foreign defendant, whether that judgment can be enforced abroad depends on the law of the country where enforcement is sought. In some jurisdictions, the enforcement of foreign judgments is straightforward. In others, it is difficult or impossible.

Key Legislation

The principal statutory and procedural provisions governing jurisdiction in Ontario cross-border cases include the Ontario Rules of Civil Procedure, particularly Rule 17.02 (which lists the categories of cases in which service outside Ontario is permitted) and Rule 17.06 (which governs motions to challenge jurisdiction or to stay proceedings). The Courts of Justice Act provides the statutory foundation for the jurisdiction of Ontario courts, including the inherent jurisdiction of the Superior Court. The Court Jurisdiction and Proceedings Transfer Act, while not adopted in Ontario, applies in several other Canadian provinces and provides a useful codification of jurisdictional principles that Ontario courts have cited with approval. The Hague Convention on Choice of Court Agreements, to which Canada acceded in 2017, provides an international framework for the enforcement of exclusive choice of court agreements in civil and commercial matters. And the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters governs the mechanics of serving court documents on defendants located in signatory countries.

Conclusion

Cross-border litigation in Ontario is governed by a framework of constitutional principles, common law doctrines, rules of civil procedure, and statutory provisions that work together to determine whether the Ontario court can hear a case, whether it should, and what law it will apply. The real and substantial connection test, as refined by the Supreme Court of Canada in Van Breda, provides the constitutional standard for jurisdiction. Forum non conveniens provides the mechanism for declining jurisdiction in favour of a more appropriate forum. And the rules for service outside Ontario, forum selection clauses, and the doctrine of attornment provide the procedural framework within which these questions are resolved.

For anyone facing a dispute with a cross-border dimension, whether as plaintiff or defendant, the jurisdictional analysis is often the most important step in the entire litigation. Getting it right at the outset can determine the outcome of the case.