This blog is primarily geared toward U.S. and Canadian attorneys who need to serve documents off-continent. For the most part, there’s no difference between what a U.S. lawyer must do and what a Canadian lawyer must do to serve in Asia or Europe or many other parts of the world. Our systems are incredibly similar, and so are our respective declarations to the Hague Service Convention. In short, if I say that “a Hague request must be filed with the appropriate Central Authority in (Country X),” that requirement applies whether the action is being heard in Manitoba or Mississippi. What I haven’t addressed– until now– is how Canadian actions must be served in the United States. So, for my colleagues north of the border, you’ve got three ways to go:
- Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot (see the upper right if you’re on a desktop, or way down below if you’re on a phone/tablet),
- Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
- If you’re feeling froggy & would like to handle the whole thing yourself, keep reading. This lays out the framework you’ll need.
Some background is in order, if you will, 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. At least, not if you want it to have any teeth. You have to file a Letter Rogatory. Dramatically different from serving a summons or notice. But in the U.S., even that isn’t necessary. It’s far quicker and more effective to hire U.S. counsel (I suggest you contact Ted Folkman for help) to file a request under 28 U.S.C. § 1782 in whichever federal district the evidence (or deponent) is located.
As to serving Canadian process in the U.S.:
Article 5 Service
- Translate the documents. The U.S. declaration to Article 5(3) requires that documents be in English. For most Canadian actions, that’s no problem, but if the action is being heard in Québec, then the documents are probably in French. That triggers a natural justice question (due process in the U.S.), so it’s highly advisable. To be sure, the U.S. Central Authority does not require translation of French documents, but if the defendant isn’t a French speaker, big problems follow.
- Fill out a Hague Service Request, referred to down here as a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by an authorized person (this is an exhaustive list)…
– Attorney General for Canada
– Attorney General, Ministry of the Attorney General or Minister of Justice of a province or territory
– Clerks of the courts and their deputies for a judicial or a court district.
– Central Authority for Alberta
– Deputy Minister of Justice, Northwest Territories
– Huissiers and sheriffs
– Local registrars
– Members of the law societies of all provinces and territories
– Members of the Board of Notaries of the Province of Québec (for non-litigious matters only)
- Send to Process Forwarding International (the outsourcing agent for the Central Authority), along with a check for USD$95. Alternatively, you can upload documents to the Authority’s contractor here. Handy stuff, electronic filing.
- Sit tight. It may take a while—potentially a couple of months from submission to return of proof.
Article 10 alternative methods
- Mail service is available, depending on the venue court’s rules, but it’s a bad idea anyway.
- Service via private agent (process server) is available to Canadian litigants under Article 10(c). Technically, it doesn’t even have to be a professional process server, although that’s a good idea– if you have “the plaintiff’s cousin Todd” do it, there’s a pretty good chance Cousin Todd will screw things up, and you don’t want that hanging over your head. Easiest way to find a pro: just Google “process server (city where the defendant is located)” and you’re good to go. Just make sure that you write the affidavit in a form used by the venue court.
The U.S. declarations and Central Authority information 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.