Everyone—including me and, I think, Antonin—is in agreement on the fact that because Alberta law required the documents to be served on Yamaha in Japan, the service had to comport with the Convention, because the Convention is, as they say, exclusive. This is the rule of Volkswagen v. Schlunk.

The court held, however, that the service did not comport with the Convention. It’s not clear precisely what the court meant. Perhaps it meant that the service did not comport with the Convention because, although Article 10(a) of the Convention permits service by postal channels, the law of Alberta did not affirmatively authorize service by mail. This is a solid position that take seriously the wording of Article 10(a): “Provided the State of destination does not object, the present Convention shall not interfere with—the freedom to send judicial documents, by postal channels, directly to persons abroad.” Some though not all US courts read Article 10(a) this way. On this view, it’s not enough that the Convention permits service by mail; the law of the forum must also permit it. The judge in Syncrude thought that Alberta law authorized service by mail, but maybe that’s wrong, and I certainly will defer to the expertise of Canadian lawyers on that question. (I note, though, that in Syncrude, the Canadian plaintiff obtained a default judgment against the US defendants, which suggests to me that the Alberta court also thought that service by mail was sufficient under Alberta law).

But I’m not sure this is what the Alberta appellate court meant at all. Mr. Justice McDonald refers to Article 11 of the Convention in a way that suggests he thought it relevant. Article 11 provides:

“The present Convention shall not prevent two or more Contracting States from agreeing to permit, for the purpose of service of judicial documents, channels of transmission other than those provided for in the preceding Articles and, in particular, direct communication between their respective authorities.”

If the suggestion is that service by postal channels is permitted only if the two states in question have made an agreement to permit it, then I think the court is pretty plainly misreading Article 11. Article 11, on its face, provides for methods of service in addition to those in the preceding articles, including the methods in Article 10. The reference to “direct communication between their respective authorities” points to what the article has in mind: the United States and Canada, for example, could make an agreement permitting a US court to transmit papers to a Canadian court directly for service of process rather than making use of the central authority mechanism of Article 5.

In short: if Antonin is citing Metcalfe to show that Alberta law does not authorize service of process by mail, then he may be right, and I happen to agree with the view that Article 10(a) itself does not permit service of mail where the law of the forum does not authorize service by mail. But if Antonin is citing Metcalfe to show that service by mail was improper under the Convention regardless whether Alberta law authorized service by mail, then I think either he or the judges in Metcalfe are just misreading the Convention.

In any event, I think the outcome of Metcalfe was correct, even if the reasoning was incorrect. It is apparent from the correspondence between the plaintiffs’ Tokyo attorney and Yamaha that the plaintiffs themselves were not purporting to serve process by mail, but rather to avoid the need for formal service of process. In the circumstances, Yamaha would at least have a strong argument that, to use American terminology, a holding that it had been effectively served would violate its due process rights, and likely Yamaha would also be able to argue persuasively that the service was not effective under the law of the forum. But to be clear: if the law of the forum authorizes service of process, and if the defendant is in a Convention state that, like Japan, has not objected to service of process by postal channels, then service of process by mail is proper under the Convention.