Following up on a recent article posted by my colleague, Christophe Shammas, on enforcing foreign judgments in Ontario, this guide sets out a brief overview on how to serve an originating process on a foreign entity.
How Service Outside Ontario is Affected
Rule 17.05 of the Rules of Civil Procedure provides, in part, that,
(1) In this rule,
“contracting state” means a contracting state under the Convention;
“Convention” means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters signed at The Hague on November 15, 1965
(2) An originating process or other document to be served outside Ontario in a jurisdiction that is not a contracting state may be served in the manner provided by these rules for service in Ontario, or in the manner provided by the law of the jurisdiction where service is made, if service made in that manner could reasonably be expected to come to the notice of the person to be served.
(3) An originating process or other document to be served outside Ontario in a contracting state shall be served,
(a) through the central authority in the contracting state; or
(b) in a manner that is permitted by the Convention and that would be permitted by these rules if the document were being served in Ontario.
Service on party in a non-contracting state is easy and can be done in accordance with the Rules of Civil Procedure. It’s when the state is a “contracting state” under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters signed at The Hague on November 15, 1965 (“Hague Convention”) where things become tricky.
Service Pursuant to the Hague Convention
Step One is confirm whether party you are attempting to serve is locating in a contracting state. This can be done by checking the status table for the Hague Convention, which is available online. It lists every single contracting state.
Once it is confirmed that the party you wish to serve is in a contracting state, Step Two is determine what options are available to you for service pursuant to the Hague Convention. Article 5 provides for service by the Central Authority of the state. Almost all states allow for service pursuant to Article 5. Some states allow for service pursuant to Article 10, which allows for service by judicial officers, officials or other competent persons in that state and by mail. In order to determine if service pursuant to Article 10 is permitted, you need to check the Authorities page of the Hague Convention website to see if the state in which you want to serve the document has objected to Article 10. This page lists every contracting state, along with information relevant to that particular state in connection with the Hague Convention.
Article 10 Service
If the state you want to serve in does not object to Article 10, you need to determine who is a “judicial officer, official or competent person” to carry out service. This can be determined on the Authorities page. Once this is done, send it that person and have them serve it.
Article 5 Service
If you need to serve pursuant to Article 5, then Step one is to determine the appropriate central authority. Once again, this can be figured out on the Authorities page of the Hague Convention website. There is a lot of very important information about how to serve a party in a contracting state on the Authorities page. You need to read the information very carefully in order to determine, among other things: (a) address of the central authority; and (b) whether the originating process needs to be translated.
Step two is then to fill out the Model Form, which can be found on the Hague Convention website and then send it, along with originating process to the central authority. In addition to a copy of the Model Form, this website also has guidelines for filing out the form and various translated versions of the form. This website has additional useful information on filling out the summary and recommended warning on the Model Form.
The central authority will then take your originating process, serve it and send you back confirmation that it has been served.
This article should not be taken to be legal advice or a definitive guide on service but rather an overview. Anyone planning to serve a party outside Ontario pursuant to the Hague Convention should read the Hague Convention in its entirety and pay careful attention to all of the provisions of the Hague Convention and all declarations of the state you are attempting to serve in before service is attempted.
If you have any questions about this guide, please contact Alison Kuchinsky.