Case of the Day: Bulmer v. Nissan Motor Co.

The case of the day is Bulmer v. Nissan Motor Co., 2017 SKCA 19 (Sask. Ct. App. 2017). Friend of the Blog Alejandro Manevich brought it to my attention. Darin Bulmer brought a purported class action against Nissan Motor Co., Ltd., the Japanese automaker, in the Court of Queen’s Bench in Regina, Saskatchewan. He served process on Nissan “by way of having a commercial courier deliver a copy of the statement of claim in Japan.” He then sought appointment of a judge to manage the class action. The trial court denied the motion because Nissan had not been properly served. Bulmer appealed.

The issue the court confronted was similar to one of the issues in Water Splash v. Menon, but with a peculiarly Canadian twist. In Water Splash, the Court noted that Article 10(a) permitted but did not itself affirmatively authorize service by mail. The law of the forum is the necessary source for authority to serve by mail.

Saskatchewan’s Rule 12-11(c) provides that service outside Saskatchewan can be made “in the manner provided in rule 12-12.” Rule 12-12, in turn, provides that the plaintiff delivers the papers to a “local registrar,” who then transmits the papers “to the appropriate authority for service as provided for or permitted by the Hague Convention.” The court held that Rules 12-11 and 12-12 “implement the central authority concept found in the Convention. However, they go no further. Even if … Article 10(a) does in fact involve a free-standing entitlement to serve documents internationally by mailing (or couriering) them, that notion has not been incorporated into the Rules.” I understand this to mean that the Rules do not affirmatively authorize service by mail.

An American court would simply have asked whether Article 10(a) itself affirmatively authorizes service by email. But the Canadian court approached the issue differently. It assumed arguendo that Article 10(a) does (in the abstract) authorize service by mail, but it noted that under Canada’s doctrine with regard to self-executing and non-self-executing treaties, even in that case, service by mail would be possible only if implemented in the law of Saskatchewan. In other words, there is no real possibility in Canada that Article 10(a) might authorize service by mail in the absence of authorization for service by mail in the law of the forum. Thus the court held that the service was insufficient.

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