Mitchison et al. v. Zerona International Inc. et al.

[Indexed as: Mitchison v. Zerona International Inc.]

Ontario Reports
Ontario Superior Court of Justice,

Master Glustein

August 26, 2014

122 O.R. (3d) 604 | 2014 ONSC 4738

Case Summary

Civil procedure — Service ex juris — Plaintiff travelling from Ontario to Barbados and personally serving Barbados defendants with statement of claim — Service invalid as it did not comply with Hague Convention — Article 10(c) of convention requiring that service be effected directly through judicial officers, officials or other competent persons in state of destination — Article 10(c) requiring intermediary for service — Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, art. 10(c).

The plaintiff travelled from Ontario to Barbados and personally served the Barbados defendants with the statement of claim. The defendants brought a motion requesting a determination that the service was invalid.

Held, the motion should be granted.

The service was invalid as it did not comply with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Article 10(c) of the convention permits "any person interested in a judicial proceeding" (in this case, the plaintiffs) to effect service of the claim "directly [page605] through the judicial officers, officials or other competent persons of the State of destination". An intermediary is required for service. 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. Even if the plaintiff could be considered a "competent person of the State of destination" under article 10(c), he did not effect service through an intermediary.

Pitman v. Mol, [2014] O.J. No. 1953, 2014 ONSC 2551 (S.C.J.), consd

Other cases referred to

Khan Resources Inc. v. Atomredmetzoloto JSC (2013), 115 O.R. (3d) 1, [2013] O.J. No. 1453, 2013 ONCA 189, 303 O.A.C. 234, 33 C.P.C. (7th) 375, 361 D.L.R. (4th) 446, 225 A.C.W.S. (3d) 922; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46, 160 D.L.R. (4th) 193, 226 N.R. 201, J.E. 98-1298, 11 Admin. L.R. (3d) 1, 43 Imm. L.R. (2d) 117, 79 A.C.W.S. (3d) 998, 38 W.C.B. (2d) 423, 1998 778

Statutes referred to

Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 16.02(1) (a), (c), 16.04, 16.08, 17.05(3)(b)

Treaties and conventions referred to

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15 1965, Can T.S. 1989 No. 2, preamble, ss. 1, 2, 3, 10(c)

Vienna Convention on the Law of Treaties, Can T.S. 1980 No. 37, ss. 31, 32

Authorities referred to

Bernasconi, Christophe, and Laurence Thébault, Practical Handbook on the Operation of the Hague Service Convention, 3rd ed. (Montreal: Wilson & Lafleur, 2006)

Hague Conference on Private International Law, Outline Hague Service Convention (Hague: Hague Conference on Private International Law, 2009)

MOTION for a determination that service ex juris was invalid.

S. Rosen, for plaintiffs.

F. Scott Turton, for defendant Zerona Canada Inc., and defendants Zerona International Inc. and Gisele Briden on the motion.

MASTER GLUSTEIN: —

Nature of Motions and Overview

[1] The defendant Zerona Canada Inc. ("Zerona Canada") brings a motion requesting a determination that any purported service of the amended statement of claim dated April 26, 2013 [page606] (the "claim") in Barbados was invalid as it did not comply with the requirements of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965 , Can T.S. 1989 No. 2 (entered into force May 1, 1989) ("Hague Service Convention" or the "Convention"), and, as such, was not served in accordance with rule 17.05(3) (b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The Barbados defendants Zerona International Inc. ("Zerona International") and Giselle Briden ("Briden") (collectively, the "Barbados defendants") join in the motion to assert that they have not been validly served, but do so without attorning to the jurisdiction.

[3] Zerona Canada also seeks an order setting aside the noting in default of the Barbados defendants.

[4] The plaintiffs, James Mitchison ("James") and Christina Mitchison (collectively, the "plaintiffs"), bring a cross-motion for an order (i) declaring that the Barbados defendants have been properly served with the claim in Barbados; (ii) validating service of the claim on the Barbados defendants; (iii) requiring Zerona Canada and the defendants Tabytha Mallett ("Mallett") and Len Spratt ("Spratt") to serve their sworn affidavits of documents and Schedule A productions within ten days; and (iv) requiring all defendants to establish a timetable for examination for discovery and mediation.

[5] The defendants Mallett and Spratt are not represented by counsel. They did not appear on the motion.

[6] On May 29, 2014, the motion and cross-motion were adjourned to permit the parties to obtain evidence as to Barbados law relevant to the issue of service under the Convention.

[7] Counsel for the plaintiffs reasonably took the position that setting aside the noting in default was not an issue since (i) if service on the Barbados defendants was not valid, the noting in default would necessarily fall; and (ii) even if service was valid, it was reasonable to set aside the noting in default as the Barbados defendants would defend the action.

[8] Counsel for the plaintiffs also reasonably took the position that his clients would adjourn the balance of the relief as against Zerona Canada, Mallett and Spratt for affidavits of documents and Schedule A productions, and against all defendants for a timetable as to examinations for discovery and mediation, since (i) if service was valid, the parties would then work together to attempt to set reasonable deadlines; and (ii) even if service was not valid, the plaintiffs would attempt to effect service through a process server on the Barbados defendants and the parties [page607] would then attempt to work together to set reasonable deadlines. Consequently, I adjourned these issues to be brought back if the parties could not agree on a timetable after the service issue was resolved.

[9] James attended personally in Barbados on October 3 and 4, 2013, and delivered the claim by hand (i) to Briden personally and (ii) to Zerona International at its registered office by leaving a copy with its administrative manager.

[10] Rule 17.05(3)(b) requires that service of an originating process outside Ontario in a contracting state be "in a manner that is permitted by the Convention and that would be permitted by these rules if the document were being served in Ontario".

[11] There is no dispute that the second requirement under rule 17.05(3)(b) has been met. The Barbados defendants were served "in a manner . . . that would be permitted by these rules if the document were being served in Ontario". Had the claim been served in this manner by James in Ontario on Briden and Zerona International as personal and corporate defendants, such service would be permitted under rule 16.02(1)(a) and (c) respectively.

[12] Consequently, the only issue I addressed at the motion was whether service on the Barbados defendants by James was "in a manner that is permitted by the Convention", i.e., the first requirement under rule 17.05(3)(b).

[13] For the reasons I discuss below, I find that claim was not served in a manner permitted by the Convention. In brief, art. 10(c) of the Convention ("art. 10(c)") requires transmission of a judicial proceeding from a "person interested in a judicial proceeding . . . directly through" to the judicial officer, official or other competent person in the state of destination (emphasis added). It does not permit a "person interested in a judicial proceeding" to travel to the state of destination to personally effect service, even if the "person interested in a judicial proceeding" would meet the definition of "judicial officers, officials or other competent persons of the State of destination".

(continued exactly as in the source decision)

Motion granted.

End of Document