Court File and Parties

Court File No.: CV-24-00718803-00CL
Date: 2025-06-18
Superior Court of Justice – Ontario (Commercial List)

Applicants:
Petersen Energía Inversora, S.A.U., Petersen Energía, S.A.U., Eton Park Master Fund, Ltd., Eton Park Fund, L.P. and Eton Park Capital Management, L.P.

Respondent:
The Republic of Argentina

Before: Barbara Conway Kimmel

Counsel:
Sarah Whitmore & Kylie de Chastelain, for the Applicants/Responding Parties
Matthew J. Latella & Bryan Hsu, for the Respondent/Moving Party

Heard: 2025-05-05

Endorsement (Respondent’s Service Motion)

The Application and this Motion

[1] The Applicants seek to enforce a judgment of more than USD $16 billion granted by the United States District Court in the Southern District of New York (the "SDNY Judgment") against the Republic of Argentina (the “Republic”). The SDNY Judgment found the Republic liable to the Applicants for breaches of contractual obligations relating to the Republic's acquisition of a controlling stake in an Argentinian oil and gas company, YPF S.A. The SDNY Judgment was rendered on the basis of the commercial activity exception to state immunity in the United States' Foreign Sovereign Immunities Act, 28 U.S.C., at § 1602-1611 (“US SIA”).

[2] This motion deals with the manner of service of the Application Record, and specifically whether the applicants were required to serve the Republic in accordance with the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965, 10-II-1969 (the "Convention"). The issue on this motion is whether the Republic has been duly served with the Application Record.

[3] The Republic argues that because service of the Application Record has not been validly effected upon it in accordance with the Convention, the Republic has not been duly served in accordance with all applicable legal requirements and it seeks a declaration to that effect by this motion.

[4] The Republic says that it did have to be served in accordance with the Convention and that, as a sovereign state, it must insist upon strict compliance with service requirements and cannot waive or overlook technical imperfections or proceed on the basis of having actual notice of this proceeding when the Notice of Application and supporting affidavit (the “Documents” or “Application Record”) were transmitted to, and received by, it on October 23, 2024.

[5] The Applicants concede that they did not serve the Republic in accordance with the Convention. However, they assert that they were not required to do so. The Applicants do not rely upon the doctrine of actual notice. They rely upon their transmission of the Application Record through diplomatic channels. Specifically, they rely upon the fact that the Documents were transmitted to the Republic on October 23, 2024 through diplomatic channels in the manner provided for under ss. 9(1)(c) and (2) of the State Immunity Act, R.S.C., 1985, c. S-18 (the "SIA").

[6] Relying upon the SIA, the Applicants maintain that service was deemed to have been effected on October 23, 2024 by virtue of the s. 9(5) Certificate dated October 23, 2024 issued by the Deputy Director at GAC, designated by the Deputy Minister, pursuant to section 14(2) of the SIA certifying that the originating documents were transmitted to the appropriate authority in the Republic of Argentina (the "Certificate").

[7] For the reasons that follow, I find in favour of the Applicants and dismiss the Republic’s motion for a declaration that it has not been duly served with the Application Record.

Procedural Background

[8] The SDNY Judgment was rendered on September 15, 2023. Aspects of it are under appeal. There is no stay pending the appeal. The Applicants are seeking to have the SDNY Judgment recognized and enforced in various jurisdictions, including Ontario.

[9] This application was commenced in Ontario on April 22, 2024.

[10] The following chronology of events regarding the transmission of the Application Record after the issuance of the application is taken largely from the Republic’s factum:

a. On April 23, 2024, the Applicants requested that GAC "transmit the enclosed Notice of Application and Affidavit to the respondents, the Republic of Argentina, the Ministry of Foreign Affairs, International Trade and Worship, in this matter in accordance with section 9 of the [SIA]". The Applicants did not invoke the Convention, and did not include a Model Form or letters rogatory.

b. On June 17, 2024, the Deputy Minister's Office wrote to the Applicants and acknowledged the request for service pursuant to section 9(2) of the SIA. The Deputy Minister provided a certificate pursuant to section 14(1)(a) of the SIA confirming that the Republic was a foreign state for the purposes of the SIA. The Deputy Minister further confirmed that the Documents had been forwarded to the Canadian Embassy in Buenos Aires, who would "transmit the documents to the appropriate officials at the Ministry of Foreign Affairs, International Trade and Worship”. The court was advised of this by letter from the Deputy Minister to the Commercial List of the Ontario Superior Court, also dated June 17, 2024.

c. For the next three months, the Applicants corresponded with GAC to obtain updates on the service process. On September 11, 2024, GAC advised that the Documents experienced an "unexpected delay" in transit and had not been sent to Buenos Aires.

d. On October 11, 2024, the Applicants brought a judicial review application before the Federal Court of Canada, seeking an order in the nature of mandamus against GAC to compel it to serve their application materials on the Republic within thirty days (the “Mandamus Application”).

e. On October 23, 2024, the Republic's Central Authority received and stamped a letter from the Embassy of Canada dated October 22, 2024 requesting international assistance to notify the Republic of the within Notice of Application. The letter invoked section 9(2) of the SIA as the basis for service. No reference was made to the Convention.

f. On October 23, 2024, GAC issued a certificate pursuant to s. 9(5) of the SIA (the “SIA Certificate”) with respect to this matter (citing the style of proceedings and court file number Court File No.: CV-24-00718803-00CL), stating that the following documents were transmitted to the appropriate authority in the Republic of the above-noted matter: Notice of Application, April 22, 2024; and Affidavit of Laura Harris with Exhibits, sworn April 15, 2024. The Certificate was sent to the Applicants on October 23, 2025 and stamped as filed with the Ontario Superior Court of Justice on October 29, 2025.

g. The Argentine Central Authority determined that the letter and attached documents did not comply with the Convention requirements. On October 31, 2024, it sent a letter to the Embassy of Canada stating that the documentation was being returned without processing because (i) the letter from the Canadian Embassy failed to invoke international law—specifically, the Convention, which is in force between Argentina and Canada, and (ii) the letter did not attach a letter rogatory, nor the Model Forms. In addition, it expressly stated that the Ministry of Foreign Affairs was not the addressee of such notification, but merely the channel for servicing notifications and, accordingly, its role was to analyze the documents to verify compliance with the Convention. In other words, it asserted that service was rejected on the basis that it did not comply with the Convention.

h. On November 5, 2024, the Applicants discontinued their Mandamus Application.

i. On November 28, 2024, GAC advised the Applicants that the Republic had "returned the documents transmitted to them, refusing service" and asked whether the Applicants would like the documents returned or destroyed.

j. Following a scheduling conference on January 16, 2025 and a case conference on January 23, 2025 at which it was determined that the service issue should be determined in advance of the hearing of the Application, the Respondents served this motion on February 24, 2025.

The SIA and the Convention

The SIA

[11] The SIA is a Federal statute that deals specifically and only with service of process originating in Canada upon foreign sovereign states and their agencies. It has been in force since 1985.

[12] Sections 9(1) and (2) of the SIA provide three methods of service of an originating document on a foreign state:

9 (1) Service of an originating document on a foreign state, other than on an agency of the foreign state, may be made
(a) in any manner agreed on by the state;
(b) in accordance with any international Convention to which the state is a party; or
(c) in the manner provided in subsection (2).

(2) For the purposes of paragraph (1)(c), anyone wishing to serve an originating document on a foreign state may deliver a copy of the document, in person or by registered mail, to the Deputy Minister of Foreign Affairs or a person designated by him for the purpose, who shall transmit it to the foreign state.

[13] Section 9(5) states that where service of an originating document on a foreign state is made in the manner provided in subsection 9(2)"service of the document shall be deemed to have been made on the day that the Deputy Minister of Foreign Affairs or a person designated by him pursuant to subsection (2) certifies to the relevant that the copy of the document has been transmitted to the foreign state".

[14] Under the SIA, once a document has been delivered or transmitted there is a procedure under s. 9(5) of the SIA that determines how and when service is deemed effective and s. 14(2) prescribes the certificate required for proof of service.

[15] Service on an agency of a foreign state is prescribed for differently under the SIA than service on a foreign state. Section 9(3) of the SIA prescribes three alternative methods for service on an agency of a foreign state: (a) in any manner agreed on by the agency; (b) in accordance with any international Convention applicable to the agency; or (c) in accordance with any applicable rules of court (such as the Rules of Civil Procedure). Unlike s. 9(1) and (2) of the SIA, service on an agency of a foreign state does not allow for service through diplomatic channels and expressly does provide for service in accordance with the Rules.

[16] Section 17 of the SIA provides: "[e]xcept to the extent required to give effect to this Act, nothing in this Act shall be construed or applied so as to negate or affect any rules of a court, including rules of a court relating to service of a document out of the jurisdiction of the court”.

The Convention

[17] Canada signed the Convention in 1988. Ontario adopted the Convention into Rule 17.05(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in 1989.

[18] This Rule provides for the operation of the Convention, noting that service shall be made either on the Central Authority in the contracting state or in a manner that is permitted by the Convention and that would be permitted by the Rules, if the documents were being served in Ontario.

[19] The Republic signed the Convention in 2001.

[20] The Convention is concerned with the transmission and eventual service of processes originating in any signatory state upon any named respondent/defendant in another signatory state. The Convention primarily addresses the transmission of documents, not the specifics of how service is performed in any particular foreign jurisdiction, in accordance with its local laws.

[21] The Convention provides for "channels of transmission" to be used when a document is transmitted from one Contracting Party to another. These channels of transmission include the "main channel of transmission", via the Central Authority of the receiving State, and "alternative channels", which include diplomatic and consular channels. In the Republic, its Ministry of Foreign Affairs, International Trade and Worship is designated as its Central Authority (the "Argentine Central Authority").

[22] Transmission under the Convention refers to the process of forwarding a document to the foreign country in which actual legal service on the addressee/party to the proceeding is to take place, regardless of whether the party is an individual, corporation or government agency. Once the Central Authority in the receiving State receives the documents to be served from a designated forwarding authority (which in Canada includes members of all of the Provincial and Territorial law societies), together with the Model Form or letters rogatory, it serves or arranges for service of the documents in accordance with local laws and service requirements or an alternative method if deemed acceptable.

[23] The Central Authority can either reject the request if it determines that the request does not comply with the Convention, or it can accept the request and arrange for the transmitted documents to be served by an appropriate agency. Such service can be effected either by a method prescribed by its internal law, or by a particular method requested by the applicant, unless the requested method is incompatible with the law of the receiving State.

Analysis

[24] The question that the court must decide is whether service of an originating process and supporting documents (in this case the Application Record) can be validly effected on a foreign sovereign state (the Republic) by service through diplomatic channels under s. 9(1)(c) and (2) of the SIA, or whether it must and can only be effected by first exhausting all reasonable efforts to serve it in accordance with the Convention (and pursuant to s. 9(1)(b) of the SIA). The answer to this question will determine whether the Republic has been duly served with the Application Record.

[25] The parties agree that procedural matters are governed exclusively by the law of the forum (lex fori). A domestic court will apply its own procedural rules and laws.

[26] The SIA governs Canadian legal proceedings involving foreign states. It provides the procedural framework in actions commenced in Canada against foreign states: see Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176, paras. 44-45 (“Kazemi Estate SCC”).

[27] It follows that service on foreign states must be effected pursuant to section 9 of the SIA. Indeed, service of originating documents pursuant to section 9 of the SIA is mandatory. The Ontario Court of Appeal has held that subsections 9(1) and (2) of the SIA provide "the sole methods for service of initiating documents on a foreign state and preclude resort to the Rules of Civil Procedure”: See Sistem Mühendislik İnşaat Sanayi Ve Ticaret Anomic Sirketi v. Kyrgyz Republic, 2015 ONCA 447, 126 O.R. (3d) 545, at paras. 36-42; see also Crystallex International Corporation v. Bolivarian Republic of Venezuela, 2016 ONSC 4693, at para. 20.

[28] Section 9(1)(b) of the SIA permits service on a foreign state in accordance with any international convention to which the state is a party (e.g., the Convention), but the Applicants contend that it does not require service in accordance with the Convention. The Republic argues that in the interests of comity and public international law, after the Convention was signed by Canada s. 9(1) of the SIA should be read to require service to be made pursuant to s. 9(1)(b) under the Convention when process originating in Canada is being served on a signatory foreign state to ensure Canada’s adherence to the Convention, which the Republic says is mandatory not optional having regard to Article 1.

[29] The point of nexus between the SIA and the Convention is section 9(1)(b) of the SIA. The Republic contends that the inclusion of this provision was in recognition that, where an international treaty is in force between two sovereign states, service under the SIA is carried out in accordance with s. 9(1)(b) and must be carried out in accordance with the Convention. In other words, the ‘may’ in s. 9(1) [service of an originating document on a foreign state may be made in (a)…(b)…or (c)] should be read as “must” be made in accordance with 9(1)(b) when serving a foreign state that is a signatory to the Convention. Further, the 'or' in section 9(1) is not to be taken as providing three equally available options in all cases. Rather, it should be read as laying out three options that shall apply differently depending on the particular circumstances.

[30] The Republic contends that is the most harmonious interpretation of s. 9(1) of the SIA that gives effect to Canada’s commitments under the Convention, which provides in its Article 1 that it "shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad".

[31] The determination of the issues in this case must be grounded in the proper interpretation of s. 9 of the SIA. While there is common ground that the word “may” is exhaustive in the sense that one of the three and only those three options must be utilized, that does not create the hierarchy that the Republic contends for, turning “may” to “must” in circumstances where there is a Convention in place.

[32] Interpreting the words of section 9 of the SIA to require that service be effected on a foreign state using the Convention under s. 9(1)(b) in priority to ss. 9(1)(c) and 9(2) would render Parliament's use of the words “may” and "or" at section 9(1)(b) redundant. Such a result would be contrary to the modern principle of statutory interpretation and would ignore the clear language of the Act: see Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto: Lexis Nexis, 2022), § 2.01 Analysis of the Modern Principle, ABOA, Tab 9, p. 376.

[33] The plain meaning of the combined use of the words “may” and “or” in s. 9(1) does not support the hierarchical interpretation. Section 9(1)(b) has always contemplated that there might be an international convention that applies in a given case, but service through diplomatic channels has been preserved strictly for foreign states (under s. 9(1)(c) and (2)). These sections of the SIA indicate a clear intention on the part of the Government of Canada to keep diplomatic channels as a mechanism of service available regardless of other available means of service. Parliament never amended s. 9 of the SIA to create hierarchy, despite amendments to other parts of the SIA since 1989, for example to add in a terrorism exception in s. 6 of the SIA in the wake of the Quebec Superior Court ruling in Kazemi (Estate of) c. Islamic Republic of Iran, 2011 QCCS 196, aff’d 2012 QCCA 1449, aff’d 2014 SCC 62.

[34] In contrast, that option of service through diplomatic channels is not available for state agencies under s. 9(3). As noted earlier in this endorsement, unlike s. 9(1) and (2) of the SIA, service on an agency of a foreign state does not allow for service through diplomatic channels and expressly does provide for service in accordance with the Rules. This indicates an express and deliberate intention to preserve this manner of service in the exceptional circumstances of service on foreign states.

[35] The words of ss. 9(1) and (2) of the SIA do not require, or even contemplate, service of process originating in Canada on a foreign state to comply with the Rules of Civil Procedure. Yet the Convention only finds its way into Canadian law through the Rules of Civil Procedure, specifically Rule 17.05(3) that adopts the Convention for extra-territorial service of process originating in Ontario.

[36] Since the SIA does not require compliance with the Rules of Civil Procedure for service on a foreign state, there is strictly speaking no operational conflict between the SIA and Rule 17.05 (and the Convention adopted through that Rule). Compliance with the Rules and the Convention, while not required, remains an option under s. 9(1)(b) of the SIA. Conversely, requiring strict compliance with Rule 17.05(3) and the Convention would frustrate the Federal Parliament’s choice to provide for the three non-hierarchical, alternative methods for service of process originating in Canada on a foreign state provided for under s. 9(1).

[37] The clear and unambiguous intention that Canadian litigants need not serve foreign sovereign states in accordance with the Convention can be found in the words of the SIA (outlined above) and in the choice not to amend s. 9 after Canada acceded to the Convention to impose the hierarchy the Republic urges upon the court.

[38] The requirement for service in accordance with the applicable Rules of Civil Procedure under s. 17 of the SIA is subject to an exception: "[e]xcept to the extent required to give effect to this Act, nothing in this Act shall be construed or applied so as to negate or affect any rules of a court, including rules of a court relating to service of a document out of the jurisdiction of the court”. Here, preserving the ability to serve a foreign state with process originating in Canada pursuant to one of the other three options for service on a foreign state provided for in s. 9(1) of the SIA is required to give effect to the SIA.

[39] Furthermore, even if there was a conflict between section 9(1)(c) of the SIA and Canada's international law obligations under the Convention that does not detract from the primacy or validity of section 9(1)(c). As domestic Canadian law, the SIA is the controlling legislation for the purposes of Canadian proceedings against foreign states. Canada's accession to, and enactment of, the Convention does not undermine Parliament's clear legislative choice to allow for service on foreign states through non-Convention channels.

[40] Canadian courts have declared service pursuant to the SIA to be valid on a foreign sovereign state without regard to the requirements of the Convention, and in circumstances where service was not effected in accordance with the Convention in provinces in which the Convention had been enacted under Provincial law: see Sistem, para. 49; Softrade Inc. v. United Republic of Tanzania (Ministry of Water & Livestock Development), para. 10; Crystallex, at para. 20; United States of America v. Zakhary, 2015 FC 335, para. 20. This result is consistent both with the fact that the Rules are subordinate legislation and with the doctrine of federal paramountcy. The fact that the Convention was not directly or explicitly considered in those cases does not detract from this.

[41] In dealing with state immunity under a different section of the SIA, the Supreme Court of Canada concluded in Kazemi Estate SCC, at paras. 55-58, that a domestic statute such as the SIA must be interpreted in accordance with the clear and ordinary meaning of its own words, without regard to the common law or international law and commitments that Canada had made under numerous multilateral instruments and declarations which explicitly prohibit torture. The court found that the SIA contained an exhaustive list of exceptions to state immunity, and civil suits alleging acts of torture was not a specified exception at that time, although “Parliament is at liberty to develop the law in line with international norms as it did with the terrorism exception” (at para. 56).

[42] I find the following quote from Kazemi Estate SCC (at para. 150) to be of assistance in attempting to reconcile the co-existence of the SIA and the Convention (as adopted under Ontario Rule 17.05 of the Rules of Civil Procedure):

But not all commitments in international agreements amount to principles of fundamental justice. Their nature is very diverse. International law is ever changing. The interaction between domestic and international law must be managed carefully in light of the principles governing what remains a dualist system of application of international law and a constitutional and parliamentary democracy. The mere existence of an international obligation is not sufficient to establish a principle of fundamental justice. Were we to equate all the protections or commitments in international human rights documents with principles of fundamental justice, we might in effect be destroying Canada’s dualist system of reception of international law and casting aside the principles of parliamentary sovereignty and democracy.

[43] The Republic asks the court to disregard Kazemi Estate SCC because it was dealing with international conventions that had not been adopted under Canadian laws (although Canada had committed to them). The points taken from Kazemi Estate SCC are of more general import and are not dependent upon whether the international law has been formally adopted in Canada. The emphasis is on the fact that the Federal Parliament has chosen not to give priority to the service requirements under the Convention under our domestic law (the SIA) that permits, but does not require, sovereign states to be served with Canadian originating process pursuant to the Convention.

[44] While not determinative, it is helpful to consider the 2014 Circular: see Global Affairs Canada, Service of Originating Documents in Judicial and Administrative Proceedings Against the Government of Canada in other States (GAC Circular Note No. JLA-1446 of March 28, 2014) (Ottawa: Global Affairs Canada, 2014): (the “2014 Circular”). The 2014 Circular makes it clear that GAC does not expect to be served in accordance with the Convention when it is named in proceedings commenced in another state, and explains (in s.4) that other states can expect to “receive in Canada the protections … with respect to service by diplomatic means to their Ministries of Foreign Affairs in their respective capitals of Canadian originating documents with at least sixty days' notice before the next step in proceedings”.

[45] The 2014 Circular further explains that “[t]he special rules for service on a State speak directly to the fact that they are entitled to greater consideration than private entities”. It “underscore[s] that proper service of originating judicial or administrative documents on a foreign State is accomplished diplomatically through transmission by the forum State's Ministry of Foreign Affairs, through its diplomatic mission accredited to the defendant State, to the headquarters of the defendant State's Ministry of Foreign Affairs in its capital”.

[46] The Republic points to the Practical Handbook on the Operation of the Service Convention, 4th ed. (The Hague: The Hague Conference on Private International Law, 2016) (the “Practical Handbook”) which has been used as an interpretative aid to the Convention in other cases in Canada not involving service on sovereign states: see, for example, Khan Resources v. Atomredmetzoloto JSC, 2012 ONSC 1522, aff’d 2013 ONCA 189, at paras. 67-77; Metcalfe Estate v. Yamaha Motor Powered Products Co., Ltd., 2012 ABCA 240, at para. 36. The Practical Handbook provides that: "where service is to be effected upon a foreign State or State official, the Convention will apply because there will typically be a need to transmit a document abroad. Accordingly, the channels of transmission provided for in the Convention must be used”.

[47] However, as noted, Khan and Metcalfe did not involve service of process on a foreign state and did not consider or address the SIA. Nor does this particular section of the Practical Handbook address itself to circumstances in which a signatory state already has a domestic law dealing specifically with service of process on foreign states that expressly provides for other channels of transmission of documents abroad that were used interchangeably prior to the Convention being adopted. The Practical Handbook is not determinative of the issues in any event since it is merely an interpretive aid to the Convention, whereas the interpretive exercise that the court is concerned with in this case is regarding the SIA.

[48] The Republic also relies on the (admittedly not yet in force) United Nations Convention on Jurisdiction Immunities of States and Their Property 2 December 2004 ("UN State Immunity Treaty"). Article 22 provides that service of process against a State shall be effected in accordance with any applicable international convention or in accordance with any special arrangement for service between the two States. Article 22 goes on to provide for transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned"in the absence of such a convention or special arrangement". In other words, the hierarchy that the Republic seeks to read into the SIA is expressly provided for in the UN State Immunity Treaty. This hierarchy is also expressly provided for in the US SIA, at § 1608(a)(3) that only permits service on a foreign state to be effected through the use of diplomatic channels if service cannot be made in accordance with an applicable international convention or by a special arrangement.

[49] In contrast, this hierarchy is not provided for in s. 9(1) and (2) of the SIA. Although it was and remains open to Parliament to provide for such, to date, and despite having made other amendments to the SIA after the Convention was signed by Canada, no such change has been made to the wording of s. 9 of the SIA.

[50] The Republic is concerned about the establishment of a new concurrent customary norm deviating from the Convention, by which the Republic would undermine its negotiated treaty rights. This would be particularly problematic if the purported justification for such a deviation from the Convention is the Republic submitting to a foreign state's domestic legislation.

[51] However, the Convention allows for exceptions, and permitting an exception that respects the sovereignty of the foreign state and adheres to customary diplomatic channels that are built around affording additional time to foreign states to process and effect service in accordance with their own domestic laws does not amount to submitting to a foreign state’s domestic laws.

[52] Further, while section 9(2) of the SIA provides for the transmission of originating documents to a receiving entity (in this case, the receiving state's Ministry of Foreign Affairs) this does not preclude the receiving state from effecting service in accordance with their internal procedural law. Contrary to the Republic's arguments, the SIA does not extend its reach to govern the substantive rules relating to the service of process abroad. As a result, in this case, it was open to the Argentinian Ministry of Foreign Affairs to effect service via the methods prescribed by Argentine law, upon receiving transmission of the originating document at its Ministry of Foreign Affairs pursuant to section 9(2) of the SIA.

[53] The above analysis leads to the conclusion that, as a matter of the proper interpretation of SIA as a whole, service of an originating process and supporting documents (in this case the Application Record) could be, and was, validly effected on a foreign sovereign state (the Republic) by service through diplomatic channels under s. 9(1)(c) and (2) of the SIA. The Applicants were not required to first exhaust all reasonable efforts to serve the Application Records in accordance with the Convention (and pursuant to s. 9(1)(b) of the SIA). The Republic has been duly served under the SIA in accordance with the applicable legal requirements.

Other Arguments Raised by the Republic

[54] There were various other arguments raised by the Republic in support of its position, none of which have any bearing on the outcome of this case.

[55] The Republic pointed out what it described as “errors” in the Applicants’ Mandamus Application (e.g., improper references to the Convention and mistakenly identifying GAC as the designated Forwarding Authority under the Convention) said to illustrate a fundamental misunderstanding of the SIA and the Convention and suggesting that is the reason this motion was necessary, because, according to the Republic, the Applicants misunderstood and misinterpreted the service requirements. Since I have found that not to be the case (e.g. the Applicants understood and complied with the service requirements), statements or assertions by the Applicants in the Mandamus Application, whether accurate or not, do not impact the analysis.

[56] The Republic asks the court to draw an adverse inference from the Applicants’ refusal to produce all of their correspondence with GAC. The specific inference suggested was for the court to conclude that the Applicants did not make any further service efforts beyond what was ultimately reflected in the October 23, 2024 SIA Certificate. This too is irrelevant in light of the court’s findings. Even if I did infer that GAC did not make further service efforts (e.g. did not exhaust all avenues of service pursuant to the Convention), that is not relevant if compliance with the service requirements under the Convention is not required and if the SIA was complied with.

[57] I do not need to consider or address the law of Argentina regarding service of process in that country, which was the subject of an expert affidavit on Argentinian law, since the requirement for service in accordance with the laws of the recipient country is a requirement for service pursuant to the Convention that I have found is not the controlling procedure under the SIA in the circumstances of this case.

[58] On a related point, it is also not relevant that the Applicants have commenced enforcement proceedings in other jurisdictions, including the United Kingdom, France, Cyprus, Luxembourg and Ireland. Nor is it relevant that they served the originating process in the other jurisdictions in accordance with the Convention (attaching the Model Form or Letters Rogatory). The Respondents point to this as evidence that the Applicants are aware of the service requirements under the Convention and have selectively complied with them.

[59] The Applicants do not deny knowledge of the service requirements under the Convention. Their position is that they were not required to follow them in this case. The laws of those other countries with respect to their requirements for duly effecting service on foreign sovereign states is not before this court. Whether the Convention must be complied with for service of originating process in those jurisdictions on foreign sovereign states is a matter of interpretation of the domestic law of those other jurisdictions which neither side put any evidence before the court about.

Effective Date of Service

[60] Section 14(2) of the SIA provides that a certificate issued by the Minister pursuant to section 9(2), with respect to "service of an originating or other document on a foreign state in accordance with that subsection" is "admissible in evidence as conclusive proof of any matter stated in the certificate with respect to that service, without proof of the signature of the Deputy Minister of Foreign Affairs ...". The October 23, 2024 SIA Certificate from GAC states that the Documents (comprising the Application Record) were transmitted to the appropriate authority in the Republic on that day.

[61] The SIA Certificate was validly issued by GAC. This is all the proof of service that is required under the SIA: see, for example, Crystallex, at paras. 22-24; McDonald v. United States of America, 2014 ONSC 1557, at paras. 3, 10. Service of the Application Record is deemed to have occurred on October 23, 2024.

[62] I find that the Republic was duly served with the Application Record on October 23, 2024.

Disposition and Costs

[63] The motion by the Republic seeking a declaration that it has not been duly served with the Application Record in accordance with all applicable legal requirements is dismissed. As the successful parties, the Applicants are entitled to their costs of this motion.

[64] In accordance with the court’s direction at the hearing, the parties exchanged their Costs Outlines and brief Cost Submissions after the hearing of the motion, and before they were aware of the outcome of this case.

[65] The Applicants seek their partial indemnity costs of $79,672.35 in connection with this Motion, supported by their Costs Outline. These costs are calculated on the basis of 60% of the Applicants’ counsel’s normal hourly rates. This figure is fair and reasonable having regard to the applicable factors under Rule 57, including the importance of the dispute, the complexity of the issues raised, and the extensive evidence tendered by the Republic, much of which was determined to be irrelevant (dealing with the requirements for service in the Republic).

[66] The Republic’s all-inclusive partial indemnity costs were claimed to be $109,075.79. This amount includes not insignificant disbursements for expert and translation fees. The amount claimed by the Applicants is proportionate and reasonable, and should have been within the reasonable contemplation of the Republic since its own fees exceeded this amount.

[67] In the exercise of my discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and upon considering the relevant factors under Rule 57.03, I am awarding the Applicants their partial indemnity costs in the claimed all-inclusive amount of $79,672.35, fixed and payable forthwith by the Republic.

Barbara Conway Kimmel
Date: June 18, 2025