The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (Hague Convention) was signed 125 years ago on July 29, 1899. The treaty simplifies the service of judicial documents abroad to ensure that defendants receive proper notice of legal proceedings in foreign jurisdictions. As signatories to the treaty, the United States and Canada are both subject to its provisions. The Hague Convention plays a significant role in cross-border civil and commercial matters and in child custody disputes.
The treaty requires each signatory to assign a “central authority” to receive international service requests. Two copies of form USM-94 and the documents to be served are given to the central authority, which then serves those documents to the defendant using an appropriate method described in the internal law of the receiving country. If the requester designates a different method, it may be used if it complies with the internal law. The central authority in Canada is the Attorney General and the Ministry of the Attorney General for each province.
While technically possible to serve in Canada without following the Hague Convention, it is not standard and may not be valid. There is, however, an alternative method under the Hague Convention that is permitted in both the United States and Canada. Article 10(a) provides guidance for using the alternative method: “Provided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.”
In Water Splash, Inc. v. Menon,i the US Supreme Court held that service by mail is not prohibited, meaning there are no restrictions on this method of service in the United States.
In Canada, mail service is generally acceptable; however, the validity of service by mail may be affected by the law of the specific jurisdiction. Provincial rules may require other specifications, so it’s crucial to check the provincial rules to determine whether mail service is proper.ii For example, Québec requires originating documents to be drafted or translated into French; however, the central authority has the authority to waive translation. Additionally, Québec requires service to be carried out by a sheriff or a member of the Chambre des huissiers de justice du Québec. Ontario requires all documents to be written in or translated into English or French.
Even if mail service is proper, there may still be other jurisdictional defenses that should be examined, such as whether the Canadian defendant has sufficient contact with the particular state in the United States to make the Canadian defendant subject to its courts.
For more information about central authorities and methods of service for Canada, click here. For information about central authorities in the United States, click here.
i137 S. Ct. 1504 (2017).
iiOntario rules are governed by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; Québec rules are governed by the Code of Civil Procedure, R.S.Q., Chapter C-25.01.