By Scott H.D. Bower and Ciara J. Toole
A new Alberta Court Rule seeks to avoid an unfortunate implication that courts have read into the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters. Effective July 25, 2013, an amendment to the Alberta Rules of Court allows the validation of service of Alberta process outside of Canada that was not effected in accordance with the Hague Convention. We have previously discussed the controversy here and here, beginning with the Alberta Court of Appeal’s decision in Metcalfe Estate v Yamaha Motor Powered Products Co Ltd, 2012 ABCA 240 and its important implications for the service of documents from Alberta into international jurisdictions. In Metcalfe, the Court held that service of Alberta process in Hague Convention signatory states must comply with the Hague Convention, and cannot otherwise be validated by the Alberta courts. That could render some defendants immune from being sued in Alberta if the foreign state simply refuses to serve the Alberta document on sovereignty or security grounds, as the Hague Convention allows it to do. The new rule clearly aims to soften this ruling and mitigate the mandatory requirements for service of Alberta process under the Hague Convention.
Rule 11.27 of the Alberta Rules of Court provides a court with discretion to validate the service of a document inside or outside Alberta if the method of service used brought or was likely to have brought the document to the attention of the person to be served. In Metcalfe, the plaintiffs relied on this rule to validate the service ex juris of several Japanese companies by registered mail, instead of serving through the Japanese Central Authority designated under the Hague Convention. While service was validated in first instance, that order was overturned by the Court of Appeal. The majority of the Court held that in order to uphold Canada’s treaty obligations and the principles of comity among nations, compliance with the Hague Convention is mandatory for service of Alberta process in signatory states. Thus, the Court could not validate a method of service not permitted by the Hague Convention. The courts in Ontario have reached a similar conclusion.
However, the new amendment to Rule 11.27 adds a provision allowing for the validation of service of Alberta process effected in international jurisdictions. Rule 11.27(4) will now state:
(4) Subrules (1) to (3) apply despite
(a) any previous order that permitted or directed service of the document by a particular method, and
(b) the fact that the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters applies to service of the document.
This new addition to the rule for validation of service suggests that regardless of the application of the Hague Convention, an Alberta court may validate service into a Hague Convention signatory state where the method of service used brought or was likely to have brought the document to the attention of the person to be served. Appearing to overrule the decision in Metcalfe, and depart from what appears to be the Ontario practice, an Alberta plaintiff can now validate service of Alberta process to an international defendant through an alternative method of service, even where the Hague Convention applies.
While this new amendment clearly aims to mitigate the demanding requirements for service of Alberta process under the Hague Convention, it remains to be seen whether the rule will be broadly or narrowly applied. In Metcalfe, the Court of Appeal emphasized and relied on comity and on Canada’s international obligations as a signatory of the Hague Convention in the service of documents abroad. Arguably, the new Rule 11.27(4) provides Alberta courts with a general discretion to override these international obligations as a matter of civil procedure.
As this new amendment is considered and applied in Alberta, we can expect further developments on this issue. We recommend that clients continue to seek legal advice with respect to the application of the Hague Convention for the service of Alberta process outside of Canada.