Friday, 22 January 2016

Provincial Offence Act summonses may be served outside Canada: Court of Appeal

The Ontario Court of Appeal has recently clarified that summonses issued under the Provincial Offences Act R.S.O. 1990, c. P.33 (“POA”) may be served not only outside Ontario but also outside Canada.

In Tenny v Ontario 2015 ONCA 841, Tenny had been charged with failure to comply with a remediation order under the Environmental Protection Act R.S.O. 1990, ch E.19.  Tenny resided in Hawaii.  Pursuant to the POA, a summons was served on Tenny there. Tenny challenged the validity of service.  It is well established law that in penal proceedings a summons cannot be served outside Canada unless such service is authorized by statute:  R. Shulman (1975), 23 C.C.C. (2d) 242 (B.C.C.A.).  Tenny argued that the provision in the POA for summonses on persons – s. 26(3) -- did not authorize service outside Canada because it refers only to summonses on a person who “does not reside in Ontario”.  He contradistinguished that provision from the language of the provision regarding service on corporations – s. 26 (4) (c) (iii) -- which contains the phrase “to an address outside Ontario, including outside Canada”.   

The Court rejected the argument, saying that “on any reasonable interpretation, “does not reside in Ontario” includes persons residing in the United States.  Not everyone would agree.  A foreign country may regard service of the Ontario summons inside its borders as an infringement of its sovereignty.  It is for this and related reasons that the interprovincial summonses legislation in Ontario and other provinces operate only inter-provincially, not internationally.   

The Court gave two other reasons for its decision. One, that it would be absurd to interpret the POA as meaning that summonses on people cannot be served outside Canada while summonses on corporations can.  Two, the legislative history:  s. 26 (4) (c ) (iii) had recently been amended because in R. v. RJ  Reynolds Tobacco Co. 2007 ONCA 749 the Court of Appeal found the predecessor provision did not clearly authorize service outside Ontario.  There had been no need to amend s. 26 (3) also because it already contained the words “outside Ontario”. 

The Tenny decision follows the trend in cross border cases to distinguish less and less between “outside Ontario” (or more generally, “outside the province”) and “outside Canada”.   The case of Beals v Saldanha  (2003), 234 D.L.R. (4th) 1 comes to mind.  Before Beals, real and substantial connection as a basis for a foreign court’s having jurisdiction sufficient for enforcement in Canada of that foreign court’s judgment applied only to enforcement of the judgments of one Canadian province or territory in another, not judgments of other countries.  After Beals, no longer do courts distinguish between judgments from outside the province and judgments from outside the country.    

The Tenny decision may also influence the interpretation of legislation that distinguishes between inside a certain province and outside that province, such as court rules for service ex juris or interjurisdictional support order legislation (although probably less so in Ontario, where the law in these two areas is fairly clear about whether “outside the province” includes outside Canada).