HOW TO SERVE LEGAL PAPERS IN CANADA

Given the Hague Convention, Canada’s Process Service structure is comparable to that of the United States. The national government exercises power among various provinces and territories, whose legal systems operate parallel to federal legislation. Canadian provinces still do not have the same sovereign position as US states, although each jurisdiction follows its mechanism concerning the process. Click here for information on How To Serve Legal Papers Internationally.

REQUIREMENTS OF CANADA PROCESS SERVICE

As well as a national central authority, each of Canada‘s regional and municipal governments establishes a central authority for Hague purposes (the United States has but a single Central Authority). While the Canadian justice structure is somewhat similar to that of the US, Americans should be cautious when equating service in Canada to service in the US. Proper protocols must also be practiced to be recognized by US courts and, subsequently, by Canadian courts in an enforcement proceeding. Specific techniques must be applied in different localities.

Canada Process Service is regulated by the Hague Convention, which Canada ratified in September 1998 and came into effect on May 1, 1999.

WHO IS AUTHORIZED TO SERVE LEGAL PAPERS IN CANADA

In Quebec, mail service is approved, but it is highly advised that all complaints should be formally served. Explicitly, only in Quebec, direct access to a huissier de justice is permitted, who is liable for serving process by Article 5 requests.  

However, the Attorney General for Canada, the Ministry of the Attorney General or Minister of Justice of a province or territory, or Clerks of the courts and their deputies for a judicial or a court district are authorized forwarding authorities under Article 3. Alberta forwards documents through the central authority alone, and the Northwest Territories rely on the Deputy Minister of Justice, Northwest Territories. It must be noted that Members of the law societies of all provinces and territories are qualified as forwarding authorities for non-litigious matters insofar as the  Members of the Board of Notaries of the Province of Québec are qualified to forward said documents. 

Under Article 6, the sheriffs, deputy sheriffs, sub-sheriffs, clerk of the court, or his/her deputy for the judicial district (except in Manitoba where there are no judicial districts) in which the person is to be served or the huissiers (only in Quebec) are competent to complete the certificate of service in addition to the central authorities. 

Canada Process Service is active in provinces outside Quebec through individual  Canada process servers. When a Canada process server is responsible for service, it is crucial to provide proof of service. Failing to collect proof may dismiss a case or failure to conduct business with a client. However, it must be remembered that if any individual intends to serve a subpoena, they cannot do it under the Hague Service Convention and must opt for the Hague Evidence Convention instead.

TRANSLATION OF LEGAL PAPERS

Different provinces take a different approach to translating documents for service. For several provinces, one may create a French or English translation. However, all papers sent to Quebec should ideally be translated into French, and it is highly recommended. Despite this preference, one may serve said documentation in its original nature if the applicant consents to this method. Still, it is likely rejected if the recipient fails to accept the documents due to not understanding their content. Formal service and service in a specific manner would depend on the relevant jurisdiction.

All papers concerned with Alberta, British Columbia, Newfoundland and Labrador, Nova Scotia, and Prince Edward Island must be published in or translated into English.  Documents from Manitoba, Northwest Territory, Nunavut, Ontario, and Saskatchewan must be written in English or French.

Papers for New Brunswick and the Yukon would have to be converted into English or French. The Central Authority of these two provinces might require documents to be translated into English or French; they may even require documents to be translated into languages. Some addressees recognize and reserve the right to direct the same.

In Québec, the document ought to be drafted in French. A given English document translation can suffice in such circumstances, subject to the recipient’s permission.  The Central Authority for Québec can, on request in writing by the forwarding authority, authorize the transmission of documents in English or translated from a foreign language if the receiver understands English.

In Québec, service or notification recipients may refuse service or notification if they consider that the translation specifications have not been met.

HOW TO SERVE LEGAL PAPERS IN CANADA UNDER THE HAGUE CONVENTION

The Hague Service Convention establishes a streamlined and uniform means of effecting service in contracting states.  Under the Convention, each state must designate a central authority to accept incoming service requests. A judicial officer competent to serve process in the state of origin is permitted to send a service request directly to the state’s central authority where service is to be made.

In keeping with the methods already laid forth by the Hague Convention, the correct forms and payments must be submitted to the appointed Canadian Central  Authority. When the records are submitted to the centralized authority, individuals will not get any notifications until they receive validation of operation or non-service. In all provinces and territories in Canada, except the province of Québec, the term “service” covers both service and “notification.” In the context of Article 5(1)(a), effecting service or notification requests through a Canadian Central Authority follows the same methodology that the usual service of process undertakes in proceedings in the Central Authority’s jurisdiction.  The standard procedure for service in Canada is personal service made by a Canada process server in Alberta, a huissier in Québec, an enforcement officer of the Ministry of the Attorney General in Ontario, or a sheriff or deputy sheriff in other parts of Canada. Personal delivery is often preferred, which may be done by handing a copy of the documents directly to an individual or a corporation by giving a copy to the individual or an officer, director, or agent of the corporation at its place of business. Costs for the execution of the service will be CAD 100. In Québec, service execution by a huissier costs CAD 100, and notification is free.

Notification in Québec is most commonly made by delivering the original or certified copy or abstract of the act, document, or notice to the person to be notified and obtaining a receipt afterward. Consequently, it must be established that unless the method requested by the applicant is inconsistent with the laws of their jurisdiction, Central Authorities in Canada will consider requests for service or notification by a particular method requested by the applicant under 5(1)(b). However, it is specified that foreign diplomatic, consular, or law enforcement officers cannot carry out service while on Canadian territory without the explicit permission granted to them by the Government of Canada. However, the Central Authorities in Canada designated by Articles 2 and 18 of the Convention can receive requests for service transmitted by a foreign consul within Canada.

To simplify proceedings in this light, Canada has hitherto required that Canadian public officials, the sheriff (in Quebec, the huissier) of the appropriate judicial district, or private process servers be retained as parties to the litigation that affects the required service. 

It must be kept in mind that formal service of legal documents emanating from America upon an individual in Canada does not per se require the recognition or enforcement in Canada of any ensuing judgment, decree, or order that an American court may render.

INFORMAL CANADA PROCESS SERVICE

Canada adheres to the Hague Convention, which has numerous forms to expedite delivery. However, the Convention and Canadian jurisprudence may not uphold a decision or judgment if service has not been performed legitimately.  Service via an agent is a tricky spot to maneuver herein. However, guidelines have been laid down wherein service via agent may be sufficient to satisfy the case’s procedural requirements.    

Going by informal approaches has benefited from being faster and cheaper than going through the structured and formal methods. However, this also attracts a more significant risk of dismissal and must be considered when effecting service. 

DIRECT PROCESS SERVICE

The most direct way to serve American legal documents in Canada is by forwarding duplicate sets of English documents (preferably with a French translation in Quebec) directly to the sheriff/huissier in whose judicial district wherein service is required. The aggregated costs for this form of service are dependent upon [A.] the number of attempts made at service, [B.] ease of accessing the individual to be served, and [C.] the location of the individual served.  When there is no urgency and no difficulty locating or serving the person to whom the documents are addressed, the sheriff/huissier’s services are generally the least expensive and most straightforward to effect.

Licensing a private Canada process server is also a popular method of providing service. The main benefit may be tracing the whereabouts of a difficult-to-find individual, whereupon a private tracing service can be beneficial. Consequently, private Canada process servers are invaluable in being efficacious agents for serving foreign legal documents in Canada.

The Hague Convention provides various models of Canada’s process of document service, such as by postal channel or by diplomatic/consular agents, judicial officers, officials, or other competent persons. These provisions are covered under Articles 8 to 10 and may or may not be allowed by member countries as a valid mode of serving the documents in their territory. Article 8 of the Hague Convention provides a means of service apart from the ones done in the Hague Convention.  Article 8 provides that “each contracting State shall be free to effect service of judicial documents upon persons abroad,  without application of any  compulsion, directly through its diplomatic or consular agents.”

 Serving the documents through a central agency (Article 5) is not optional but binding on all the member countries. Under the Hague Convention, each signatory has to designate a ‘Central Authority’ to accept incoming service requests. The Hague Convention specifies the form of these requests, mandating the form to be that of the USM-94. This is a Request for Service Abroad of Judicial or Extrajudicial Documents accompanying the American judicial process recognized by the Central Authorities of many foreign countries signatories to the Hague Service Convention.

DEFAULT JUDGMENTS

Service through a central agency falls within a 4 to 12-month bracket. The Convention gives relief to the litigants if they have not received a service certificate or delivery from the central agency even after waiting for six months. In such cases, the court may consider that a reasonable time has elapsed, giving its judgment. In case of urgency, the court may issue a provisional order or protective measure even before the six-month waiting period. 

Article 15 of the Convention is the provision for default judgments.  It mentions that a judge is free to file a default judgment against a defendant and presume that service was proper under the Hague if [A.]  the document was transmitted correctly to the correct Central Authority, [B.] at least six months have passed since the transmission of the document to the Central Authority, and [C.] the Central Authority has not issued a certificate even though the requesting party followed the requirements for service. This provision is essential because it provides a procedure in case the lack of service is not the fault of the individual who has addressed the documents to the respondent and provides a threshold for accountability to the Central Authority. 

While Canada Process Service is more accessible than in many countries, it is still vital to ensure that all documents that must be attached are complete and concise. Furthermore, critical documentation like the USM-94 needs to be signed by a court official or an attorney.  If this is not the case, it is necessary to verify that the court has commissioned the person signing.

“Quality is never an accident; it is always the result of high intention, sincere effort, intelligent direction, and skillful execution; it represents the wise choice of many alternatives” – Foster, William A

ADDITIONAL RESOURCES

• Canada Process Service
• How To Serve Legal Papers in Canada
• Rules of Civil Procedure in Canada
• How The Central Authority Works in Canada
• Canada Process Service: Rules, Laws And Court Procedures
• Complete Breakdown Of The Hague Service Convention Articles
• Hague Service Convention: Streamlining International Legal Procedures
• How The Hague Convention Simplifies International Process Service
• Corporate Process Service: International Service of Process Guide
• How To Overcome Language Barriers in Process Service
• How To Navigate The Complexities of International Process Service
• How To Master International Process Service: Cross-Cultural Communication
• Understanding Alternate Methods of International Process Service
• International Service of Process: Expert Guide For Global Legal Success

FOR ASSISTANCE SERVING LEGAL PAPERS IN CANADA

Click the “Place Order” button at the top of this page or call us at (800) 774-6922 to begin. Our team of experienced process servers is prepared to assist with reliable and efficient service of corporate legal documents, ensuring compliance with all regulatory requirements. We offer both comprehensive support and à la carte services tailored to meet your corporate needs:

• Prompt and professional service of international legal documents
• Accurate completion and documentation of affidavits of service
• Rush service for time-sensitive international matters
• Skip tracing for hard-to-locate individuals or entities
• Detailed reporting on service attempts

Avoid delays or potential legal setbacks due to improper service. Trust Undisputed Legal’s skilled team to handle the critical task of international process service on your behalf. Our diligent, professional service supports attorneys, corporations, and business entities in ensuring that legal documents are served accurately and on time.

Take the first step toward reliable international process service – click “Place Order” or call (800) 774-6922 now. Let Undisputed Legal be your trusted partner in managing the vital process of serving international documents.

“Quality is never an accident; it is always the result of high intention, sincere effort, intelligent direction, and skillful execution; it represents the wise choice of many alternatives” – Foster, William A

Sources

1. A huissier de justice (literally French for “justice usher”), sometimes anglicized as a judicial officer, is an officer of the court in France, Luxembourg, Belgium, Canada, Greece, Italy, and Switzerland. The officer is appointed by a magistrate of the court (or in France, by the Minister of Justice) and holds a monopoly on the service and execution of court decisions and enforceable instruments. Huissiers de justice also serves as formal witnesses to events (constat d’huissier) in the manner of a notary public.

2. Article 6

The Central Authority of the State addressed, or any authority which it may have designated for that purpose shall complete a certificate in the form of the model annexed to the present Convention.

The certificate shall state that the document has been served and shall include the method, the place and the date of service, and the person to whom it was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service.

The applicant may require that a certificate not completed by a Central Authority or by a judicial authority shall be countersigned by one of these authorities.

The certificate shall be forwarded directly to the applicant.

3. Formal Service (Art. 5(1)(a))

4. Article 5

The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either –

a)  by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or

b)  by a particular method requested by the applicant, unless such a method is incompatible with the State’s law.

Subject to subparagraph (b) of the first paragraph, the document may always be served by delivery to an addressee who accepts it voluntarily.

If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.

In the form attached to the present Convention, which contains a summary of the document to be served, that part of the request shall be served with the document.

5. The names and addresses of these provincial officials are listed in Canada Law List,

6. Firms providing these services are listed in Canadian telephone directories under “Process Servers”/”Huissiers Exploitants” and “Tracing Bureaus.”

7. Article 10: Provided the State of destination does not object, the present Convention shall not interfere with –

a) the freedom to send judicial documents, by postal channels, directly to persons abroad,

b) the freedom of judicial officers, officials, or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of destination,

c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of destination