The Postman Always Rings Twice: NY Appeals Court Validates Service By Mail On Canadian Defendants

The Postman Always Rings Twice (film)

My colleague, Ted Folkman, a Boston area lawyer with a focus on international commercial litigation who also authors the excellent Letters Blogatory, sent me this tweet recently:

Ted and I have had a continuing debate over the issue of validity of service by mail of a Complaint by a U.S. plaintiff on a Canadian defendant under the Hague Service Convention.

Background

The decision  in New York State Thruway Auth. v Fenech (2012 NY Slip Op 01167) dated February 16, 2012  (NY App.Div., 3rd Dept) per Mercure, J. (“Fenech”) overturned the New York appeal court’s prior precedent and held that service by mail is valid under Article 10(a) of Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (20 UST 361, TIAS No 6638 [1969]) (the “Hague Service Convention”).

In Fenech, the plaintiff/appellant, New York State Thruway Authority appealed the order of the Supreme Court (Platkin, J.), entered August 27, 2010 in Albany County, granting a motion by the defendants Nathan C. Fenech (“Fenech”), an Ontario resident, and Silver Creek Transport, Ltd. (“Silver Creek”), an Ontario company, to dismiss the complaint against them.

The defendant, Fenech was driving a tractor-trailer owned by Silver Creek that allegedly exceeded statutory height limitations, damaging the underside of a bridge in the Town of Batavia, Genesee County. The plaintiff sued Fenech and Silver Creek,  as well as defendant Graham Corporation, which owned the cargo of the truck. The Ontario defendants (which the New York appeal court only  describes as Canadian), were served by mail pursuant to Vehicle and Traffic Law § 253 (albeit the New York appeal judge footnotes that the affidavit of service specifies Business Corporation Law § 307).

The Ontario defendants then moved to dismiss the complaint, contending that service by mail upon them was not permitted by the the Hague Service Convention. The New York Supreme Court granted the motion on that basis, noting that “it was bound to do so by virtue of this Court’s decision in Reynolds v Woosup Koh (109 AD2d 97 [1985]) and cogently suggesting that Reynolds be revisited in light of subsequent developments in the law.” In Reynolds, the plaintiff was severely injured in a car accident and sued the manufacturer Japan-based Nissan, which successfully argued that the Hague Service Convention did not permit service by mail.

Mercure J. overturned Reynolds and reversed. Based upon the American approach to treaty interpretation and legislative history (travaux préparatoires in international law terms), the New York appeal court observes that:

The drafters’ view of article 10 (a) is reinforced by the subsequent actions of signatories to the Hague Convention, a majority of whom make “no objection to the service of judicial documents coming from abroad directly by mail in their territory” (Permanent Bureau of Hague Conference, Report on Operation of Convention of 15 November 1965 on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 17 ILM 312, 326 [1978]; see Table Reflecting Applicability of Articles 8 [2], 10 [a], [b] and [c], 15 [2] and 16 [3] of the Hague Service Convention, available at http://www.hcch.net/upload/ applicability14e.pdf [accessed Dec. 13, 2011]). Moreover, special commissions convened to study the operation of the treaty have consistently noted that article 10 (a) preserves the right to serve process by mail, notwithstanding the holdings of “certain courts in the United States of America . . . that service of process abroad by mail was not permitted under the Convention” (Special Commission of April 1989 on Operation of Hague Conventions of 15 November 1965 on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and of 18 March 1970 on Taking of Evidence Abroad in Civil or Commercial Matters, Report on Operation of Hague Service Convention and Hague Evidence Convention, 28 ILM 1556, 1561 [1989]; see Special Commission on Practical Operation of Hague Apostille, Evidence and Service Conventions, Conclusions and Recommendations on the Practical Operation of the Hague Apostille, Evidence and Service Conventions, at 11 [2003], available at http://www.hcch.net/upload/wop/lse_concl_e.pdf [accessed Dec. 13, 2011]). The United States Department of State holds the same view, and its opinion, while not conclusive, “is entitled to great weight” (Sumitomo Shoji Am., Inc. v Avagliano, 457 US at 184-185).

It is therefore now evident that article 10 (a) of the Hague Convention permits service of process by mail and, as such, plaintiff was free to serve defendants pursuant to Vehicle and Traffic Law § 253 (see Fernandez v Univan Leasing, 15 AD3d at 344-345; see also Aranzullo v Collins Packing Co., 18 AD2d 1068 [1963], affd 14 NY2d 578 [1964]). Inasmuch as we further reject defendants’ argument that the requirements of section 253 were not met, we conclude that Supreme Court acquired jurisdiction over them and their motion to dismiss must be denied.

Cross-Border Implications

Lawyers on both sides of the 49th parallel should take stock of the Fenech decision. While some commentators cling to the idea of the continuing relevance of personal service of process,  Fenech represents a sea change in conflict of laws and cross-border litigation. If the decision stands, it will put many process servers out of work and render service through the official diplomatic channels of the Central Authority moot.

 The other side of the jurisdictional coin is the recognition and enforcement of foreign judgments. There is, in all likelihood, a strong argument to be made by Canadian defendants (particularly those in Ontario), that any U.S. judgment obtained that is not based upon personal service, or an alternative to personal service, is contrary to natural justice (due process) and is against public policy.

A basic tenet of due process or fundamental justice under Canadian law is that defendants—whether domestic or foreign—should be given notice of legal proceedings taken against them. Without such notice the right to defend or to a hearing is rendered meaningless. This case puts squarely in issue whether compliance with the mandatory rules for service under Articles 5 and 10(a) of the Hague Service Convention  would ultimately render a foreign default judgment void and unenforceable in Canada.

Service In and Outside Ontario

What the New York appeal judge failed to adequately address in Fenech is the key issue of what constitutes valid service under Ontario law.

The Hague Service Convention was established to facilitate service abroad by accommodating concerns of some “objecting states” about the use of private process serves to serve court documents. Canada acceded to the Hague Service Convention in 1988 and it came into force on May 1, 1989 after amendments were made to the rules of procedure in Canadian courts.[1] [2]

Articles 5 of the Hague Service Convention provide that the Central Authority of the State addressed shall serve a document or arrange for service by an appropriate agency by either a method prescribed by its internal law for service of documents or by a particular method requested by the applicant, unless incompatible with the law of the State addressed. [3] Article 10(a) of the Hague Service Convention allows for freedom to send judicial documents by postal channels directly, or through the assistance of judicial officers, officials or other competent persons of the State of destination. [4]

In Ontario, the Hague Service Convention is incorporated into Rule 17.05 of the Ontario Rules of Civil Procedure.[5] Rules 16.02(1)(a) and (c) of the Ontario Rules of Civil Procedure provide that service of an originating process on an individual and on an Ontario corporation is only permitted on the following basis:

PERSONAL SERVICE

16.02  (1)  Where a document is to be served personally, the service shall be made,

Individual

(a) on an individual, other than a person under disability, by leaving a copy of the document with the individual;

Corporation

(c) on any other corporation, by leaving a copy of the document with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be in control or management of the place of business;…” [emphasis added] [6]

Alternatives to personal service are listed under sub-rules 16.03(4)-(6) which provide:

Service by Mail to Last Known Address

(4) Service of a document may be made by sending a copy of the document together with an acknowledgment of receipt card (Form 16A) by mail to the last known address of the person to be served, but service by mail under this subrule is only effective as of the date the sender receives the card. O. Reg. 24/00, s. 3.

Service at Place of Residence

(5)  Where an attempt is made to effect personal service at a person’s place of residence and for any reason personal service cannot be effected, the document may be served by,

(a) leaving a copy, in a sealed envelope addressed to the person, at the place of residence with anyone who appears to be an adult member of the same household; and

(b) on the same day or the following day mailing another copy of the document to the person at the place of residence,

and service in this manner is effective on the fifth day after the document is mailed. R.R.O. 1990, Reg. 194, r. 16.03 (5).

Service on a Corporation

(6)  Where the head office, registered office or principal place of business of a corporation or, in the case of an extra-provincial corporation, the attorney for service in Ontario cannot be found at the last address recorded with the Ministry of Consumer and Commercial Relations, service may be made on the corporation by mailing a copy of the document to the corporation or to the attorney for service in Ontario, as the case may be, at that address. R.R.O. 1990, Reg. 194, r. 16.03 (6).

According to the HCCH website, Canada has made a number of official Declarations, including the following Declaration under Article 5 of the Hague Service Convention:

Text of the declarations:

2. Methods of service employed by the Central Authority (Article 5)

2.1 Formal service (Article 5, paragraph 1, sub-paragraph a)

In Canada, service will be effected according to the methods of service prescribed by the laws in force in each province and territory.

The normal procedure that will be used by Central Authorities in Canada is personal service made by a sheriff or deputy sheriff or a huissier in Quebec, on an individual or on a corporation by handing a copy of the document to the defendant in person, wherever he may be, or to the President, Chairman or other Chief Officer of a corporation at the place of business. Service may also be effected by leaving a copy of the document with a person of a reasonable age at the defendant’s domicile or residence.

Where service is made on a corporation, provincial laws usually provide for service on a director or senior officer of the corporation or, in some cases, on a registered agent or on a responsible person at the registered office of the corporation.[emphasis added][7]

Canada’s Response to the 2008 Hague Service Convention Questionnaire [8] includes the following response made on behalf of the Central Authority of Ontario:

D. Article 10 a) – Postal Channel

If your State has opposed “the freedom to send judicial documents, by postal channels, directly to persons abroad” (Art. 10 a)), please indicate:

a. the reason(s) that motivated this opposition:

Central Authority of Ontario:

Postal service would not generally be effective service in a proceeding in an Ontario court.

Articles 15 and 16 of the Hague Service Convention set out the procedural requirements for issuing a judgment where a defendant fails to appear. [9]

In Samina North America Inc. v. H3 Environmental II LLC, the late Justice Echlin of the Ontario Superior Court of Justice noted that for proper service under the Hague Service Convention, Rule 17.05(3) of the Ontario Rules of Civil Procedure requires that service be effected through “the central authority in the contraction state” or in accordance with Rules 16.01, 16.02 & 16.03, which outline the manner of service of an originating process.  At paragraph 3, the learned judge held:

“It is common ground that WM&D & Gladden were not served through the Central Authority, personally, and that there was no applicable court order. The Statement of Claim was left by a messenger with a receptionist, Nikia Boone, at WM&D’s New York City office, who was not authorized to accept service.

Mr. Turk urged that I validate the service pursuant to Rule 16.08. I cannot do so: see: Dofasco Inc. v. Ucar Carbon Canada Inc. (1998), 27 C.P.C. (4th) 342 (Ont. Gen. Div.). Even though the Statement of Claim may have come to the notice of WM&D & Gladden that is not the test. To correct such irregularity would undermine the objectives of the Hague Convention and encroach upon the sovereignty of the United States. There is a difference in treatment between inter-provincial and international service” [emphasis added]

The argument against service by mail is buttressed by the decision in Molson v. Vitale, where the British Columbia Supreme Court determined that even delivery on a receptionist did not amount to “service”, observing that:

“If it is correct that service of process on a company can properly be made by leaving a copy of it with any clerk or secretary or cashier, and left, not even at the company’s place of business but anywhere where such person may be encountered, then corporations are indeed exposed to perils which do not face any other litigant.”[10]

In Spaeth v. Onni Development (Mayfair Place) Corp., another British Columbia court set aside service of an originating process delivered to a receptionist on a similar footing.[11]

Admittedly, the issue of lack of proper notice of proceedings manifests in default judgment scenarios. This is not to say that Canadian courts apply the Hague Service Convention uniformly. In Wilson v. Servier Canada Inc. (2002), 58 O.R. (3d) 753, 23 C.P.C. (5th) 193 (S.C.J.), the Ontario court upheld service by regular mail in France where the statement of claim came to the actual notice of each of the French defendants, or was served in such a manner that would have come to their attention, but for the defendants’ attempts to evade service.

Conclusion

In the wake of inconsistent application and interpretation of Article 10(a) of the Hague Service Convention, the more practical, albeit unlikely, solution is legislative action. The Canadian federal government, under the auspices of the Department of Foreign Affairs and International Trade and the Department of Justice, (in consultation with the designated Central Authorities for the respective provinces and territories) should withdraw Canada’s declaration under Article 10(a) of the Hague Service Convention and formally object to service by postal channels. Otherwise, Canadian defendants in foreign judgment enforcement proceedings are at a marked disadvantage, both in terms of challenging a foreign court’s assertion of personal jurisdiction and subject-matter jurisdiction. Personal service should remain the cornerstone of jurisdiction, bounded by the pillars of comity, reciprocity, good faith and order and fairness.


[1] Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965, C.T.S. 1989/2.

[2] Castel & Walker, CANADIAN CONFLICT OF LAWS, Vol. 1, §11..15, (rel. 11-4/2008 Pub. 5911)

[3] Hague Service Convention, art. 5.

[4] Hague Service Convention, art. 10.

[5] Rule 17.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[6] Rule 16.02(1)(c) of the Rules of Civil Procedure.

[7] Declarations made by the Central Authority designated by Canada under the Hague Service Convention: HCCH Website available online at: http://www.hcch.net/index_en.php?act=authorities.details&aid=248 (last accessed on March 2, 2012).

[8] The 2008 Hague Service Convention Questionnaire: HCCH Website available online at: http://www.hcch.net/tindex_en.php?act=publications.details&pid=4580&dtid=33, (last accessed on March 2, 2012).

[9] Declarations made by the Central Authority under Articles 15 and 16 designated by Canada under the Hague Service Convention:http://www.hcch.net/index_en.phpact=status.comment&csid=392&disp=resdn (last accessed, March 2, 2012)

[10] Molson v. Vitale et al 1991 CarswellBC 599, 47 C.P.C. (2d) 302 (B.C.S.C.) at paras. 25-28.

[11] Spaeth v. Onni Development (Mayfair Place) Corp. 2008 CarswellBC 754 (B.C.S.C.) at para. 11Background

 

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7 Responses to “The Postman Always Rings Twice: NY Appeals Court Validates Service By Mail On Canadian Defendants”

  1. Ted Folkman Says:

    Thanks, Antonin, for this post. As you note, Fenech holds that Article 10(a) permits service of process, and not just of other judicial documents, through postal channels. This is not just the view of most American courts today–it is the view of the Hague Conference and the great majority if not all courts around the world. The idea that Article 10(a) did not apply to service of process was, as far as I know, a purely American mistake.

    I think it’s important to distinguish the validity of service under Ontario law from the validity of service under US law and to understand which kind of validity was relevant to the court’s decision. The only question before the New York court was whether the service complied with New York law. So the court had to find, first, that New York law authorized service of process by mail, and second, that service of process by mail was permitted by the Convention. The New York court was not concerned with the enforceability of the judgment in Ontario, nor should it have been. I defer to you entirely on the issue of what a Canadian court would do with a US judgment that follows service by mail.

    You quote a portion of the Canadian declaration, which says: “In Canada, service will be effected according to the methods of service prescribed by the laws in force in each province and territory.” But this comes in the part of the declaration that has to do with service made under Article 5, i.e., service via the central authority mechanism. It means, I think, that if a plaintiff chooses to use the central authority mechanism, the central authority will serve the documents according to its own law, which is what one would expect. You do not quote what I think is the relevant part of the declaration, which says simply: “Canada does not object to service by postal channels.” You also refer to the 2008 questionnaire, but I do not see that the questionnaire can constitute Canada’s formal declaration in light of Article 21, which prescribes the method of making a declaration. So whatever the Province of Ontario’s position, it seems quite clear to me that Canada has not objected to service of process by mail under Article 10(a).

  2. Antonin I. Pribetic Says:

    Thanks, Ted. I don’t think it’s exclusively an “American mistake”, or a mistake for that matter. There are a number of signatories to the Hague Service Convention that have filed an objection under Art. 10(a) (Switzerland and Germany come to mind). I disagree that the internal law is irrelevant to the validity of service of process by mail. The New York appeals court decision in Fenech relies on treaty interpretation, so the bilateral and multi-lateral treaty implications are highly relevant. The discrepancy between Canada’s federal Declaration under Art.10(a) cannot be read in isolation, given Canada’s constitutional framework and provincial implementation regime. You will note that all of the common law Central Authorities answering the 2008 Questionnaire unequivocally answer in the negative in response to service by mail of originating process.

    Thanks for alerting me to this important decision.

    Best,

    Nino

  3. Ted Folkman Says:

    Always fun discussing this with you, Nino. It’s true that lots of states have objected to service by postal channels. The “American mistake” was to hold that service of process by mail was impermissible even in non-objecting states because Article 10(a) uses the word “send” instead of “serve”.

  4. bellfolsom45 Says:

    Awesome points! I’ve been currently looking for this kind information. It’s Very important to me right now, I’m using this service via mail to my business partners. Thanks for the post!

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