We ain’t building rockets here. But we are building a canoe of sorts, and a leaky canoe means you won’t make it upriver to see the big hockey game, eh? Serving U.S. process in Canada is subject to the strictures of the Hague Service Convention, and that means different things depending on where the defendant sits. Much like the United Kingdom, Canada has varying methods for service depending on jurisdiction.
Most of Canada is decidedly English—in language and in legality (common law). Québec, though, is a former French colony, and though it was taken over by the British only recently (the 1760s), they’re still militantly French up there. In language and in legality (civil law).*
Regardless of where you serve in Canada, this Dominion is without parallel for simplicity—whether serving in Québec or elsewhere, it really is straightforward stuff. Serving in Manitoba is freakishly similar to serving in Minnesota, and it stands to reason (they’re right next door and they have roughly the same accent, eh?). Here in the States, we’re bookended by the most and the least effective countries in the Hague Service community (Canada & Mexico, respectively).
Some background is in order, if you’re so inclined, before we cut to the chase.
- The roadmap to the overall process—the recipe to our Secret Sauce.
- The structure of the Convention itself is discussed in this four-part series.
- And an absolutely critical note: the Hague Service Convention does not pertain to subpoenas. Repeat after me—you can’t just SERVE a subpoena abroad. In Canada, you have to file a Letter Rogatory, roughly similar to a Hague Evidence Request (although Canada is not a party to the Hague Evidence Convention). The same Cardinal Rules apply—this is dramatically different from serving a summons or notice.
Now, for the chase scene… click here and fast forward to 2:00. [No, I don’t really mean that chase.]
Here’s how service is effected in Canada:
Article 5 Service in Québec
- Translate the documents. Canada’s declaration to Article 5(3) requires that initiating documents served in Québec must be translated into French. Although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request if you haven’t sought leave to omit them in advance. (NB: this refers to initiatingdocuments—the summons & complaint, rather than notices of hearing, etc. Subsequent documents might get through untranslated.)
- Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney. If it is not, make sure that the person signing is commissioned by the court.
- Send to the Québec Central Authority. Canada decentralizes its Central Authority (yes, I know that’s counterintuitive). Each province has one.
- Sit tight. It may take three or four months from submission to return of proof.
Article 10 alternative methods in Québec
- Mail service is available, depending on where you are, but it’s a bad idea anyway.
- Canada allows direct access to a huissier de justice,** the judicial officer who serves process in Québec actions and Article 5 requests. This method avoids having to wait for processing by the Central Authority, often cutting wait time by a month or two. Handy stuff.
Article 5 Service in Anglophone Canada (everywhere other than Québec)
- Translate the documents? Logically, if service is effected in Anglophone provinces, documents must be in English. So, game over, right? [Yay! Pack up and go home!] Not so fast, counsel… make sure your defendant speaks English, because his U.S. Due Process rights follow him north of the border. Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
- Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney. If it is not, make sure that the person signing is commissioned by the court.
- Send to the appropriate Central Authority. Again, Canada decentralizes its Central Authority. Again, I know that’s counterintuitive. Again, each province has one.
- Sit tight. It may take three or four months from submission to return of proof.
Article 10 alternative methods in Anglophone Canada
- Mail service is available. But it’s a bad idea.
- Service via private agent (process server) is available to U.S. litigants under Article 10(b). Canada’s 10(b) declaration tells you to go to the Yellow Pages to find one (seriously… the Yellow Pages***). Just be sure you write up the proper proof. That’s where it gets complicated.
Canada’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.
Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client. The plaintiff may not have done it correctly.
* Very important to remember—it’s not Quebec. It’s Québec, with an accent aigu, merci beaucoup. Pronounce it KAY-beck, not Kwuh-BECK, or you’re apt to get a hockey puck jammed into your mouth. That’s also not to be confused with KBEK, which is a radio station in Braham, Minnesota. Not far from Canada, in terms of either geography or accent.
**The huissier is a specialized professional in French-speaking civil law jurisdictions, with a statutory monopoly on service of process functions. A rough analog in common law systems: a combination between a bailiff and a sheriff.
*** This declaration came about before the Googles. For you young folks, we had these things that told us how to contact businesses—>
No comments:
Post a Comment