The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, also called the Hague Service Convention, entered into force in Canada on May 1, 1989.
US attorneys seeking service in Canada should familiarize themselves with the mandatory character of the Convention as set forth in Volkswagenwerk A.G. v. Schlunk, 486 U.S. 694 (1988).
For the purposes of Hague service, Canada’s legal system is quite similar to that of the United States, in that the national government shares legal authority with various provinces and territories, whose own set of laws and rules of civil procedure exist parallel to national laws. Canadian provinces do not share the same sovereign status as US states, though each province has unique service of process rules.
While all Hague Service Convention member countries maintain a national Central Authority for service of process, each of Canada’s provincial and territorial governments also maintain a Central Authority for Hague purposes (the United States, in contrast, has but a single Central Authority). And while Canada’s judicial system is similar to that of the US, American attorneys should guard against equating service in Manitoba to service in North Dakota. Proper procedures must still be followed for service to be recognized by US courts and, subsequently, by Canadian courts in an enforcement action. Those procedures vary greatly depending on the defendant’s locality.
Only one Canadian province requires translation of documents already in English: Québec, which varies from the broader presumption that documents delivered in English are properly served. Generally speaking, documents served in Québec must be translated into French, although Québec’s Central Authority may waive translation if the recipient unquestionably speaks English.
In all cases, documents must reasonably be understood by the defendant in order to fulfill US Due Process requirements.
Canada does not object to service by postal channels. In all cases, service via the postal channel should include a signed receipt mechanism (required under Fed. R. Civ. P. 4).
Mail service pursuant to the Hague Service Convention is fraught with issues, including the need to have it executed in accordance with the forum court’s local rules, and where service abroad is proper when the destination country has not affirmatively stated that it is not opposed to mail service.
Canada has not lodged objections to service by judicial officers, officials or other competent persons; nor has Canada objected to service by “other interested persons.” However, the definition of those terms can vary wildly, so careful consideration must guide the analysis of which channel is most appropriate.
LLS can assist you with service and can help you understand and meet the requirements for service of process in Canada, as well as a host of other legal procedures. Please call 1-800-755-5775 for more information.
