General Practice, Solo & Small Firm DivisionMagazine
Service of Process in Canada
By Natasha L. Ell and Dean I. Moroz
While it is not uncommon for American lawyers to visit Canada on vacation, most never think about what serving process in the Great White North might entail. Yet, knowing how to do so can inspire confidence in clients and colleagues and help to ensure that resolution of legal proceedings with a cross-boarder dimension happens in a timely and efficient fashion.
The Hague Service Convention
Fortunately, serving process abroad (whether in Canada or in other locales around the globe) is no longer as daunting as it was a generation or two ago. This is largely due to the Hague Convention, to which Canada and the United States are both signatories.
To expedite service of process abroad, the Hague Convention mapped out a standardized method for the procedure; most signatory states and territories have, as a matter of course, either adopted the specific provisions of the Hague Convention or have enacted similarly worded provisions. Complying with the requirements of the Hague Convention is therefore essential, although, as the following sections illustrate, not particularly onerous.
A Standardized Method
The essential feature of the standardized method of effecting service abroad (and the genius of the Hague Convention) is the requirement in Article 2 that "[e]ach contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other contracting States...."
The designated central authority in the United States is the federal Department of Justice (DOJ) in Washington, D.C. Lawyers from foreign signatory states wanting to serve process in the United States fill out a request to the DOJ, which forwards the request to the appropriate office of the U.S. Marshal, for service upon the addressee.
In Canada, it is also possible to apply for service of process from the United States at a central location, via the Canadian Federal Central Authority. However, to save time, appropriate branches (provincial or territorial) of the central authority can be contacted directly (see Resources).
In most cases, only three steps are necessary to meet the requirements of the Hague Convention: (1) determine the jurisdiction in which service is to be attempted (usually as simple as knowing the address of the party to be served); (2) forward the document(s) to be served to the central authority within that jurisdiction, along with the prescribed fee of C$50 (Canadian), and any special instructions; and (3) wait to receive confirmation of service (typically three to four weeks). In most Canadian jurisdictions, service is made in person. Two copies of the document are required—one to be served and the other to be returned, along with the Affidavit of Service, to the originating party.
Bear in mind that Canada is an officially bilingual nation; some provinces and territories have different requirements for translations. While in most instances documents served in English will suffice, the central authorities for the Province of New Brunswick and the Yukon Territory, for example, reserve the right to require translation of documents into English or French, depending on which is understood by the addressee. The central authority for the Province of Quebec requires translation in all instances where the intended recipient does not understand the language in which the document is written. You can consult the relevant central authority for specific information.
Two Sets of Rules
As a result of the Hague Convention, American lawyers wanting to serve process in any of the signatory states, including Canada, are able to do so with as much confidence as normally accompanies serving process in their own country. However, lawyers must still ensure that service complies with both the specific rules in their home jurisdiction (i.e., the state where legal proceedings have been commenced), as well as the rules of the Hague Convention as adopted in the relevant jurisdiction.
Failure to do so could result in an allegation of improper service or even a motion for service to be quashed. Fortunately, avoiding such a scenario is easily done. Provided the Hague Convention requirements are met, serving process in Canada is as anticlimactic as serving process in the United States.
Natasha L. Ell worked in the Edmonton office of the Alberta law firm of Duncan and Craig and is currently relocating to California. She received her LL.B./B.C.L. from McGill University in 1998. Dean I. Moroz works in the Hong Kong office of the international law firm of Goodman Phillips & Vineberg, after which he will undertaking a judicial clerkship at the Alberta Court of Appeal in Calgary, Alberta. He previously worked in the Edmonton office of the Alberta law firm of Duncan and Craig. He received his LL.B. from the University of Toronto in 1999.