By: Akanksha A. Panicker
Given the Hague Convention, Canada Process Service structure is comparable to that of the United States’. The national government exercises power among various provinces and territories whose legal system operates parallel to federal legislation. Canadian provinces still do not have the same sovereign position as US states, although each jurisdiction follows its own mechanism concerning the process.
[1.0] 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, in contrast, has but a single Central Authority). While the Canadian justice structure is somewhat close to the US, Americans should be cautious when equating service in Canada to service in the States. 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 had been ratified by Canada in September of 1998 and came into effect on the first of May of 1999.
[1.1] WHO IS AUTHORIZED TO SERVE
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, 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 other provinces outside of Quebec through individual Canada process servers. In situations where there is a Canada process server 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.
[2.0] TRANSLATION OF DOCUMENTS
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 being sent to Quebec should ideally be translated into French, and it is highly recommended to do so. Despite this preference, one may serve said documentation in its original nature if the applicant consents to this method. Still, it has a probability of being rejected if the recipient fails to accept the documents based on not understanding their content. Formal service and service in a specific manner would be dependent based 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 originating 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. In such circumstances, a given English translation of the document can suffice 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.
[3.0] CANADA PROCESS SERVICE 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 who is 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 judicial documents undertakes in proceedings in the Central Authority’s jurisdiction. The normal 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 on a corporation by handing a copy of the document to the individual or an officer, director, or agent of the corporation at its place of business. Costs for the execution of service will be CAD 100. In Québec, service execution by a huissier costs CAD 100, and notification is free of charge.
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 thereafter. 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 are competent to receive requests for service transmitted by a foreign consul within Canada.
To simplify proceedings in this light, Canada has hitherto required that either Canadian public officials, the sheriff (in Quebec, the huissier) of the appropriate judicial district, or private process-servers be retained party to the litigation affect the required service.
It must be kept in mind that effecting formal service of legal documents that emanate 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.
[3.1] 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 by legitimate means. 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 method. However, this also attracts a larger risk of dismissal and must be kept in mind when effecting service.
[3.2] DIRECT 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 is 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 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 simplest to effect.
The licensing of a private Canada process server is also a popular method of effecting service. The main benefit to the same may be tracing the whereabouts of an individual who is difficult to find, whereupon a private tracing service can be beneficial. Consequently, private Canada process servers are invaluable in being efficacious agents for performing the service of foreign legal documents in Canada.
The Hague Convention provides various models of Canada process service of documents 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 not be allowed by member countries as a valid mode of serving the documents in their territory. What Article 8 of the Hague Convention does is provide for 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.”
The method of serving the documents through a central agency (Article 5) is not optional but is 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 that is recognized by the Central Authorities of many of the foreign countries who are signatory to the Hague Service Convention.
[3.3.] DEFAULT JUDGMENTS
Service through a central agency falls within a bracket of 4 to 12 months. 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 properly transmitted 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 important because it provides for 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 itself.
While Canada Process Service is easier than in many countries, it is still vital to ensure that all documents must be attached are complete and concise. Furthermore, key 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 person signing has actually been commissioned by the court.
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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