Letters Blogatory contributor Alejandro Manevich comments on a recent Ontario decision construing the Hague Service Convention to forbid a plaintiff himself to deliver a summons to a defendant in a country that has not objected to service under Article 10(c), even if the plaintiff is a competent person to serve process under the law of the receiving state. This is an interesting problem, and one I hadn’t considered before—the problem can’t really arise in the US courts, where plaintiffs cannot serve process themselves.
The case of the day is Mitchison v. Zerona International Inc., 2014 ONSC 4738, a recent decision by the estimable Master Glustein of the Ontario Superior Court, where he allowed the defendant’s motion to set aside service of an amended statement of claim for failure to comply with the Hague Service Convention. The case raises an unusual and novel (at least in Ontario) issue on the interpretation of art. 10(c): though it appears at first to be another example of the strict formalism of the Convention, on closer examination it contains much more interesting ramifications.
The litigation concerned a dispute over the sale of an Ontario franchise. The plaintiffs, James and Christina Mitchison, had initially issued their statement of claim in November 2012 against Zerona Canada, whose defence in turn pleaded that the contract at issue was in fact with a discrete company, Zerona International, based in Barbados. The plaintiffs amended their claim to add International as a separate defendant, then in October 2013 sought to serve it. Mr. Mitchison, with a Canadian news film crew in tow, went to Barbados in person and delivered copies of the amended claim to International at its registered office, and to one of its directors at her residence in Barbados.
There was clearly no question whatsoever that International had actual notice of the claim, then. But actual notice isn’t relevant: as the Ontario Court of Appeal held last year in Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189, the Convention is a complete code, so courts cannot excuse even technical non-compliance. Under r. 17.05(3) of the Ontario Rules of Civil Procedure, service to a contracting state must be either (a) through the central authority of that contracting state, or (b) in a manner that is both “permitted by the Convention” and would be allowed under the Ontario rules if the document were served here. Since Ontario law would allow Mr. Mitchison to act as his own process server, the issue was solely whether such service was “permitted by the Convention”: specifically, whether it fell under art. 10(c), which states that the Convention does not infringe a party’s “freedom … to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.”
As the court had done in Khan Resources, the Master (the equivalent of a magistrate judge in U.S. federal courts) relied on the Convention explanatory documents, specifically the 2006 Practical Handbook and the 2009 Outline, to provide needed context for the interpretation. He noted that the focus on the concept of “transmission” indicates a distinction between the “person interested in a judicial proceeding” (in this case, the plaintiff) and the “competent persons of the State of destination”:
The mechanism of requiring transmission to a different person for service ensures at least some level of control of the means of service in the state of destination by a competent person of that state of destination.
Otherwise, judgment against a foreign defendant could be obtained simply by an individual who is “interested in a judicial proceeding” swearing that he or she attended in the foreign jurisdiction to deliver the document. Such an interpretation runs contrary to the role of the “transmission” of the document between states to ensure some oversight over service by the state of destination. [at paras. 47-48]
For this reason, he was unimpressed by the plaintiffs’ argument that Barbadian law also would permit a plaintiff, acting without an intermediary or agent, to personally serve a claim on a defendant. In his view, this merely showed that Mr. Mitchison “would be able to effect service under Barbados law if he had issued the Claim in Barbados.” [at para. 49]
This is, perhaps, a case only a lawyer could love; I suspect most non-lawyers would consider it perverse in the extreme to set aside service because of what seems to be a picayune technicality. But Master Glustein has zeroed in on a fundamental issue: the action of transmitting a document from one state to another, one of the necessary elements for the Convention to apply. That the plaintiff could have effected service under Bahamian law is irrelevant because the Convention is not concerned with the substantive rules on effecting service of process within the receiving state. Transmission and service are related but distinct concepts, and here the question is what it means to transmit the document from the sending state to the receiving state. Master Glustein concludes, in my view correctly, that the language, structure, and intent of the Convention mean that the transmission cannot be “received” in the receiving state by the very same person who sent it. As he notes, this also has aspects of judicial comity. That is far more than a mere technical matter.