The case of the day is Icon DE Holdings LLC v. Eastside Distributors (S.D.N.Y. 2015). Icon sued Eastside and served process in Quebec. The precise manner of service was unclear. Icon claimed it proceeded via the Quebec central authority. But while I see an affidavit of service from the process server I don’t see an Article 6 certificate from the central authority. My assumption is that Icon properly sent a request for service to the central authority but that instead of sending back an Article 6 certificate the central authority sent the affidavit.
In any event, Icon served the documents in English but without a French translation. It obtained a default judgment. Eastside successfully moved to vacate the judgment on grounds of insufficient service of process. The case was again before the court on Icon’s motion for reconsideration.
First, my take on the service. The server was a huissier, and so I think that if Icon had simply hired the process server to make service directly, rather than going through the central authority, the service would have been effective. The translation requirements of Article 5 apply only to service under Article 5 and not to service by, for example, competent persons under Article 10(c). But assuming that Icon made the request for service to the Quebec central authority, then as long as the defendant understood English (as seems to be the case), no translation should be required. Canada’s practical guidance on the translation requirement states that a translation “will be required in all cases where the recipient does not understand the language in which the document is written.” When a translation is required, it must be a translation into French; “however, the Québec Central Authority may, upon request, allow a translation in English at the condition that the recipient understands this language.”
Seems like an easy case. But let’s see what the judge did. I believe he simply misread the practical guidance and concluded that in Quebec a translation is always required. That seems clearly wrong. In particular, the judge misunderstood the last sentence quoted above. The reference to allowing a translation in English applies in cases where the documents are written in a language other than French or English. In such a case, the documents must be translated into French unless, in a particular case, the central authority allows a translation into English. This is sensible considering the Quebec has a large anglophone population.
That’s not to say that the judge was wrong to deny the motion for reconsideration. A movant seeking reconsideration of an earlier decision has a very heavy burden to meet, and perhaps Icon didn’t meet the burden here. But it seems pretty clear that the judge’s initial decision was erroneous.
Of course, the easiest thing for Icon to do would have been to serve process by mail, a point that the judge recognized.
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