CANADA Law and Practice Contributed by: Craig Ferris KC, Marko Vesely, Shannon Hayes and Codie Chisholm, Lawson Lundell LLP
3.3 Jurisdictional Requirements for a Defendant Whether a defendant is subject to the jurisdiction of the courts is based on whether there is a “real and substantial” connection between the juris- diction and the facts on which a claim is based. Some facts include whether the claim relates to a business operated in the jurisdiction; real property located in the jurisdiction; a contract governed by the law of the jurisdiction; a tort committed in the jurisdiction; or a trust adminis- tered in the jurisdiction. Where a defendant does not agree that they are subject to the court’s jurisdiction, they may apply to the court to dispute jurisdiction. Additionally, even where a court has jurisdiction, a defend- ant may apply to the court alleging that another jurisdiction is the more appropriate forum (forum non conveniens). If the court agrees with the defendant, a stay of proceedings will be entered. 3.4 Initial Complaint The name of the commencement document that must be filed depends on the rules of procedure in the jurisdiction. For claims that require a trial, the commencement document may be called a “statement of claim”, “notice of civil claim” or “notice of action”. For claims that may not require trial or are less procedurally complex, a different document called an “originating appli- cation”, “petition” or “notice of application” may be used to commence the proceedings. The contents of these commencement docu- ments are largely the same. The plaintiff or mov- ing party must identify the parties, the material facts giving rise to the claim, a summary of the legal basis for the relief, and the relief that they are seeking.
It is possible to amend a commencement docu- ment unilaterally by the party within certain time- frames or with leave of the court upon appli- cation and satisfying the court that the test for amendment is met. 3.5 Rules of Service In general, a commencement document must be served personally on the defendant or respond- ing party. Typically this is done through a process server or lawyer hired by the plaintiff or moving party. The courts do not serve commencement documents on the defendant or responding party. The rules of procedure for the jurisdiction will have different procedures for when service on the defendant or responding party is within or outside the territorial jurisdiction of the court. If personal service cannot be made, substitu- tional service orders may be obtained from the court for an alternative method of service. These applicants must be supported by evidence of attempts made at personal service. Where service is made outside the territorial jurisdiction of the court, leave of the court may be required and the factors in 3.3 Jurisdictional Requirements for a Defendant regarding the “real and substantial connection” test will apply. Where service is to be completed in a country that is a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, ser- vice must comply with the Convention’s require- ments. 3.6 Failure to Respond If a defendant has not provided a response in accordance with the timeframes for responding
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