Ted, the law of the forum is the Convention if the defendant is from a Contracting State and where service out is concerned. Nino

Thanks for your informative analysis.

Under the Ontario Rules of Civil Procedure (the “RCP”), service of a document is contrasted with service of originating process (i.e. Statement of Claim or Notice of Application). In the former instance, documents may be served by any means that are sufficient to bring the documents to the attention of the defendant. In the latter instance, personal service is mandatory, unless the Rules allow for an alternative to personal service, or an order is obtained for substituted service or dispensing with service.

As you correctly point out, the defendant in Khan is a “subsidiary of the Russian State Atomic Energy Corporation—as its name suggests, a state enterprise.” I do not think that the motion judge adopts the American judicial approach to the “non-mandatory” nature of the Hague Service Convention. The motion judge’s reasons address the mandatory nature of Canada’s international treaty obligations to apply the Hague Service Convention once implemented by the various provinces and territories.

In any event, as discussed in my recent post on the New York State Thruway Auth. v. Fenech decision, I cite the Ontario Superior Court of Justice decision Wilson v. Servier Canada Inc. (2002), 58 O.R. (3d) 753, 23 C.P.C. (5th) 193 (S.C.J.), which upheld service by regular mail in France where the statement of claim came to the actual notice of each of the French defendants, or was served in such a manner that would have come to their attention, but for the defendants’ attempts to evade service. However, unlike the Russian Federation, France has not filed a Declaration under Article 10.

In response to your hypothetical:

“Suppose, for example, that a foreign corporation has an office in Ontario, or that an individual foreign defendant happens to be traveling in Ontario. Is it the case that service in Ontario in such cases is improper?”

If a foreign corporation has an office in Ontario, then it has a “physical presence” in Ontario such that presence-based jurisdiction is established. Rule 17 deals with “Service Outside Ontario”, obviating any resort to the Hague Service Convention.

If an individual foreign defendant happens to be traveling in Ontario, the prevailing case law is that a sojourn is not sufficient to establish presence-based jurisdiction. As such, Ontario, and Canada, generally, does not recognize “tag jurisdiction”.

The Court of Appeal for Ontario decision in Van Breda v. Village Resorts Limited (see my post: “Supreme Court of Canada grants leave in Van Breda v. Village Resorts Limited appeal”: http://thetrialwarrior.com/2010/07/08/supreme-court-of-canada-grants-leave-in-van-breda-v-village-resorts-limited-appeal/) which modified the “real and substantial connection” test for assuming jurisdiction over foreign defendants remains under reserve by the Supreme Court of Canada since March 2011).

Sub-Rule 17.02(p) of the RCP raises a rebuttable presumption of personal jurisdiction over a foreign defendant allowing for service outside Ontario without leave “against a person ordinarily resident or carrying on business in Ontario”…”

Hence, a sojourner or ‘accidental tourist’ would not meet the definition of someone who is “ordinarily resident” under Rule 17.02. If the defendant neither has attorned nor consented to the Ontario jurisdiction, then the plaintiff would be required to prove any other jurisdictional facts sufficient to establish an alternative basis for assumed jurisdiction under Rule 17.02 (except 17.02(h) damages sustained in Ontario; and 17.02(o) necessary or proper party). If not, the plaintiff must prove on a balance of probabilities that the Ontario court may assume jurisdiction applying the multi-factored “real and substantial connection” test for jurisdiction simpliciter in Van Breda.