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).
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