What if only some of the relief claimed falls within the scope of service ex juris as of right? Can service ex juris still be effected as of right?
Today's Court of Appeal decision in Precious Metal Capital. Corp. v. Smith, 2008 ONCA 577 suggests 'yes'.
The Court holds:
V. THE SERVICE EX JURIS ISSUE
[35] Rule 17.02(h) permits service ex juris
In respect of damage sustained in Ontario arising from a tort, breach of contract, breach of fiduciary duty or breach of confidence wherever committed.
[36] The plaintiff seeks damages by way of an alternative remedy. The damage claimed is not as thoroughly articulated in the statement of claim as are the plaintiff's other claims. The damage claim is, however, essentially a claim for the money equivalent of the potential profits lost to the plaintiff when, according to its allegation, the defendants misappropriated the various mining opportunities in Peru.
[37] The plaintiff, as indicated above, is an Ontario corporation with a registered office in Ontario, carrying on business in Ontario. It is a reasonable inference that its financial records and infrastructure are maintained in Ontario.
[38] The motion judge held that damages flowing from the alleged breaches constituted damages sustained in Ontario, thereby bringing the claim within rule 17.02(h). I agree with that conclusion. As held by Osler J. in Skyroters Ltd. v. Carriere Technical Industries Ltd. (1979), 26 O.R. (2d) 207 at 209–210 (H.C.J.):
In my view, the corporations here bringing action to the extent that they have suffered a loss of profits and a loss of use of the machine, were disadvantaged and were so disadvantaged at the place where their financial records were kept and where they did business, namely at their head office in Ontario. The damage sustained was so sustained, in my view, within Ontario…
[39] I think the damage claim brings the action within rule 17.02(h)
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