I was the one who opened the gate as we were going out on a field trip. That man was so exhausted. The kids are traumatized from that incident. I stopped getting paid after that too (-$25000). I hope the kids are alright now, but then it was a different story. I almost died in Barbados.

Okay …

I was there in Barbados, I witnessed Zerona International being served papers by an exhausted man from Canada. I have been in contact with the RCMP with regards to this matter.

Ooh! I like your hypothetical, Aaron. I think what this case really teaches, on a very practical level, is that conservatism is your best bet when serving process. If time is not at a premium, I always prefer to use the central authority mechanism. By the way, this is true domestically, too. If there’s no rush, I always prefer to send the summons to the sheriff and let things take their ordinary, predictable, and defensible course.

I noticed there’s multiple plaintiffs.

What’re your thoughts on if Plaintiff A (competent person of state of origin) transmits the document to Plaintiff B—pedantically let’s say he’s in the state of destination at the time—who then serves the document.

If the issue is that the person who served the claim and who “transmitted” the claim to be served are the same person, if the 1st Plaintiff gives it to the 2nd, and the 2nd serves it, wouldn’t that qualify as ‘transmitting?’, and we’d have to move on to the issue of competency, which Master Glustein seems to recognize as a given (Para 49)?

Seems a strange decision that entirely skips across what “competent person of the state of destination” means and focuses improperly on the word “other” in section 10(b) or (c) of the Hague Convention.

It says:10(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, ”

Seems on plain reading that the “other” modifies the list beginning with ‘judicial officers, officials…” as in Here’s two explicitly “competent” persons of the State of destination, but any “competent person” of the state of destination will do.

Looks to me that “competency” refers to whether a person is permitted to serve documents in the state of destination: Pitman v. Mol, 2014 ONSC 2551 Service was permitted in that case based on the server being licensed, as is required in Georgia. In a state (like Barbados) if the Plaintiff B is permitted to serve documents under their law, that qualifies them as ‘competent person of the state of destination’ for service purposes, doesn’t it?

Master Glustein seems to say the Mitchison Plaintiff’s interpretation runs contrary to oversight by the State of Destination, but that didn’t happen in Pitman. All Pitman required was that the person doing the service was authorized in Georgia to process serve.

It still confuses me then, even if all the above is accepted, what “of the state of destination” mean—Is that Citizenship, right to work, Currently residing in per local laws, Physically located … Or is it just a Whole phrase subject, requiring the person to whom the document is transmitted to be recognized as “competent [for serving documents] within the state of destination’s jurisdiction”?

People invest service of process with all kinds of magical significance, and their attempts at the dramatic regularly fail. One of my favorite examples is birther lawyer Larry Klayman, who traveled to Austria in order to be on hand to serve process on OPEC. Guess how that turned out.

Ted,

I agree, this is an unusual case. But on reflection, I may have made it seem more unusual than it needs to be, by speculating on a broader reading than was intended.

I think the confusion has arisen because Master Glustein uses “transmission” in two different ways. In art. 1, “transmission” refers to transporting the document from the forum state to the destination state: the focus is on where the document is going, not who effects the transmission, or who effects service in the destination state. However, he also uses it in the context of art. 10(c) to mean the act of handing over the document from the interested party to the competent person (see e.g. paras. 40, 47, and 52 of his reasons). Of course, art. 10(c) does not use the words “transmit” or “transmission”: though art. 10(c) is referred to as one of the alternative “channels of transmission”, the article concerns a mechanism for “effecting service.”

On a closer reading, I think Master Glustein is simply saying that art. 10(c) requires that the “interested party” deliver the document to a person “of the State of destination”, who then effects service. He doesn’t, however, say anything about where that person may be located at the time the document is handed over. Arguably there should be no reason why one could not make use of art. 10(c) by handing a document for service to a Barbadian “competent person” who happens to be located outside Barbados at the time. In that case, the same person effecting service would also effect transmission, but that seems neither here nor there (if you’ll excuse the pun).

On a different note, I have to wonder whether the dispute over service was in fact entirely unnecessary. The Hague Convention does not even come into play where the law of the forum does not require service abroad, and as best I can tell there was some evidence that Zerona International and its director, Giselle Briden, could have been served in Ontario. Ontario Rule 16.01(1) allows service on a “person outside Ontario carrying on business in Ontario” by “leaving a copy of the document with anyone in Ontario carrying on business for the person.” A brief WHOIS search of Zerona Canada’s website shows that it has the same administrative contact e-mail address as some two dozen or more other Zerona-related websites. The registration information for those sites, in turn, often refers to either “Zerona Canada International” or “Zerona International”, located at the same Ontario addresses and with the same Ontario contact person, namely Giselle Briden. While hardly conclusive, this certainly suggests that all three defendants were in substance carrying on business in Ontario, irrespective of where they were incorporated or residing.

So why bother with flying to Barbados, TV cameras in tow? Perhaps the plaintiffs felt that the defendants had been dealing from the bottom of the deck from day one, and that the bright light of publicity might be more effective than the slow wheels of justice?

Alex

Alex, I agree with you. But I think that just goes to show that maybe the decision isn’t correct. Consider Article 8: “Each Contracting State shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents.” It doesn’t make any sense to think that service under Article 8 would be okay if the plaintiff transmits the summons from the state of origin to the consular officer in the state of destination, but that it would not be okay if, for example, the plaintiff gives it to the consular official while he’s on a trip home and the consular official travels with it to the state of destination and then serves it. Or take Article 10(b). Can it really be that the competent official must transmit the document across national borders to the competent person of the state of destination if the competent person of the state of destination picks up the papers while visiting the state of origin? The same seems to be true of Article 10(c) as well: suppose the Canadian plaintiff hired a Barbados process server to serve process, and the process server came to Canada to pick up the documents.

If my intuition is right about this, what about the textual problem of Article 1 (“occasion to transmit a judicial … document for service abroad”)? One suggestion: Articles 8, 9, and 10 each contain language suggesting that in some way their procedures derogate from the ordinary requirements of the Convention (states “shall be free” to effect service under Articles 8 or 9; the Convention “shall not interfere with” the methods of service permitted by Article 10). So to summarize this view: the Convention applies whenever, in order to accomplish the service, you ordinarily would transmit the document from the state of origin to the state of destination, and the ordinary way to do this is via the main channel provided by Article 5; but the alternate methods of service permitted by the Convention operate notwithstanding that ordinary rule. This view has problems, too, e.g., how to deal with the relatively common case of service on a defendant abroad by delivery of the documents to his counsel in the forum state. In short, I don’t know what the answer is, but the outcome in the Ontario case seems problematic.