The Ontario Court of Appeal recently addressed the issue of whether Ontario courts may substitute, dispense with, or validate service of legal documents in countries that are parties to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Convention”).

The Convention was put in place to streamline the procedure for serving documents in foreign counties. In countries that have become signatories or have otherwise incorporated the Convention (called “contracting states”), service is effective if the party seeking to serve documents follows the procedures set out by the Convention. The only exception to this obligation where “compliance would infringe its sovereignty or security”. In this case, the contracting state must inform the applicant of the reasons for the refusal.

The Ontario Court of Appeal’s Application of the Convention

The application of the Convention was recently tested in Khan Resources Inc v Atomredmetzoloto JSC (“Khan”). In Kahn, the Ontario Court of Appeal held that where the Convention applies, its procedure is a complete code for service. This means that Ontario courts have no ability to substitute, dispense with, or validate service when a contracting state refuses to effect service according to Article 13 of the Convention.The Court of Appeal’s decision suggests that where a contracting state refuses service on the grounds that it infringes sovereignty or security, no further explanation is required from that contracting state.

The possibility is left open for an Ontario court to exercise its discretion to substitute, dispense with, or validate service where all avenues of appeal under the Convention have been exhausted by the applicant. Even then, it is questionable whether an Ontario court would exercise this power. The issue would then become whether, in exercising this jurisdiction, the Court would be failing to comply with Canada’s international obligations under the Convention.

It will be interesting to see how this novel issue will play out in the courts, especially when complying with Canada’s international obligations deprives a citizen of his or her right to access to justice.

Jennifer Saville