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
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
The application of the Convention was recently tested in Khan Resources Inc v Atomredmetzoloto JSC
("Khan"). In Khan, 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
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
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.
Co-authored by Jennifer Saville, Summer Student.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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