Letters Blogatory

The Blog of International Judicial Assistance
By Ted Folkman

Case of the Day: Progressive Southeastern Insurance Co. v. J&P Transport

The Case of the Day, Progressive S.E. Ins. Co. v. J&P Transport (N.D. Ind. 2011), is a denial of a motion for alternative service in Canada. Progressive, the plaintiff, sought to serve Andrews, a Canadian, at an Ontario address that its private investigator had obtained, via the Canadian Central Authority. The Central Authority’s certificate stated that it was unable to make service because Andrews had moved and left no forwarding address. Progressive then sought leave to serve process on Andrews by mail addressed to Andrews’s Canadian lawyer, who was representing Andrews in a related proceeding in Canada.

The Court denied the motion. It held that Progressive had not used diligence to discovery Andrews’s new address, though the case that it cites for this proposition is a case involving the standard for determining when an address is unknown such that under Article 1 of the Hague Service Convention, the Convention does not apply. This suggests that the court may have misunderstood a somewhat subtle idea—because Canada has not objected to service by postal channels, service by mail in Canada is not inconsistent with the Convention, and so Article 1 isn’t really to the point. More to the point, the Court pointed out there was no evidence Progressive had asked the Canadian lawyer for Andrews’s address. The court went on to say that it wasn’t clear that service on the Canadian lawyer was reasonably calculated to provide notice to Andrews, but it’s not clear why this is so, assuming that he was indeed Andrews’s lawyer.

Ted Folkman
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19 responses to “Case of the Day: Progressive Southeastern Insurance Co. v. J&P Transport”

  1. Antonin I. Pribetic

    “This suggests that the court may have misunderstood a somewhat subtle idea—because Canada has not objected to service by postal channels, service by mail in Canada is not inconsistent with the Convention, and so Article 1 isn’t really to the point.”

    According to the HCCH website Declarations made by the Central Authority designated by Canada under the Hague Service Convention: (HCCH Website available online at: http://www.hcch.net/index_en.php?act=authorities.details&aid=248), Canada has made a number of official Declarations, including the following Declaration under Article 5 of the Hague Service Convention:

    “Text of the declarations:
    2. Methods of service employed by the Central Authority (Article 5)

    2.1 Formal service (Article 5, paragraph 1, sub-paragraph a)
    In Canada, service will be effected according to the methods of service prescribed by the laws in force in each province and territory.

    The normal procedure that will be used by Central Authorities in Canada is personal service made by a sheriff or deputy sheriff or a huissier in Quebec, on an individual or on a corporation by handing a copy of the document to the defendant in person, wherever he may be, or to the President, Chairman or other Chief Officer of a corporation at the place of business. Service may also be effected by leaving a copy of the document with a person of a reasonable age at the defendant’s domicile or residence.

    Where service is made on a corporation, provincial laws usually provide for service on a director or senior officer of the corporation or, in some cases, on a registered agent or on a responsible person at the registered office of the corporation.”

    On the “Service Section” of the HCCH website, the Permanent Bureau currently provides practical information for each Contracting State that was mainly obtained from the responses to the 2003 Questionnaire accompanying the provisional version of the new edition of the Practical Handbook on the operation of the Service Convention (2003 Service Questionnaire). Canada’s Response to the 2008 Hague Service Convention Questionnaire includes the following response made on behalf of the Central Authority of Ontario:

    “D. Article 10 a) – Postal Channel
    41)
    If your State has opposed “the freedom to send judicial documents, by postal channels, directly to persons abroad” (Art. 10 a)), please indicate:
    a. the reason(s) that motivated this opposition:
    …
    Central Authority of Ontario:
    Postal service would not generally be effective service in a proceeding in an Ontario court.”

    Rules 16.01(1) and 16.02(1) of the Ontario Rules of Civil Procedure read:

    “16.01(1) Originating process- An Originating process shall be served personally as provided in rule 16.02 or by an alternative to personal service as provided in rule 16.03.”
    …

    “16,02(1) Where a document is to be served personally, the service shall be made,
    (a) Individual- on an individual, other than a person under disability, by leaving a copy of the document with the individual;…”

    (Note: Rule 16.03 -Alternatives to Personal Service dealing with an order of substituted service, acceptance of service by lawyer, service by mail to last known address and service at place of residence do not appear to apply based upon the facts outlined in the U.S. District Court’s decision).

    Therefore, service of originating process (i.e. a complaint) by postal channels would be invalid under both the Hague Service Convention and the Ontario Rules of Civil Procedure.

    Reply
    1. Ted Folkman

      Thanks, Antonin! Your citation to the 2003 Questionnaire is helpful. Of course, I’m not going to disagree with you about matters of Canadian law, but let me make a couple of points:

      First, the Canadian declarations on the HCCH website expressly say: “Canada does not object to service by postal channels.” I am not sure how to square this statement with Ontario’s position in the 2003 questionnaire. I am not positive of this, but I doubt that the answer to the questionnaire constitutes a formal objection, which, under Article 21, must be by notification to the Ministry of Foreign Affairs of the Netherlands.

      Second, if I understand what you’re saying, you’re suggesting that because Canada’s declarations indicate that service under Article 5 will be effected under the law of the relevant province or territory, and because Ontario law does not generally permit service by mail, Canada’s declarations effectively prohibit service by mail in provinces or territories that do not permit it. I’m not sure I follow your reasoning, since service by mail under Article 10 is not service via the central authority under Article 5. In other words, I don’t understand why the declarations regarding the procedure to be followed when the plaintiff seeks to effect service via the central authority have any relevance to whether service via postal channels is permitted. It seems to me that in the absence of an objection under Article 10, the validity of service by mail is a question to be decided under the law of the forum, not the law of the state where service is effected.

      Reply
  2. Antonin I. Pribetic

    Since international treaties are not self-executing in Canada, they must be implemented by each province and territory. The Declarations form part of the implementation of the Hague Service Convention, which has been implemented by incorporation into the various provincial rules od civil procedure. In Ontario it is Rule 17.

    If service is effected through the Hague Service Convention, then service by mail of originating process must be done so personally. Personal service does not include postal service, either domestically (i.e. Ontario Rules of Civil Procedure) or internationally (i.e. Hague Service Convention). If this were not the case, then we would have an anomalous situation where an Ontario defendant could be served by mail with a foreign claim, yet not be served by mail with an Ontario claim.

    Reply
    1. Ted Folkman

      I think the first question is whether Canada or Ontario has validly objected to service by postal channels (and I wonder what your view is in light of my previous comment). If so, then you are right and service by mail in Ontario is impermissible under the Convention. If not, then I think your view is not correct.

      The Practical Handbook (3d prov. ed. 2003, at 54) addresses this point specifically: “The validity of service of a document abroad through postal channels depends first on the law of the forum. The procedural law of the originating State determines whether, and if applicable, on what terms, a service through postal channels is admissible … On the basis of the Convention, the validity of service through postal channels also depends on the absence of objection to this form of transmission by the State of destination.”

      In other words, assuming the state of destination has not objected under Article 10, the validity of the service depends on the law of the forum, not the law of the state of destination, which is why I wrote earlier that assuming Canada and Ontario have not properly objected, Canadian law is essentially irrelevant to the validity of the service, which is to be judged under US law.

      You wrote: “If this were not the case, then we would have an anomalous situation where an Ontario defendant could be served by mail with a foreign claim, yet not be served by mail with an Ontario claim.”

      I think that’s precisely the situation that exists, if I’m right and Canada (and Ontario) have not made an objection to service by mail under Article 10. This is not as anomalous as you might think. For example, in the U.S., the Federal Rules of Civil Procedure do not authorize service by mail on defendants within the United States (though they do permit service by mail if the law of the state where the federal court sits permits service by mail in state court actions, and Rule 4(f)(2)(C)(ii) permits service by mail on defendants abroad in certain circumstances). But since the U.S. has not made an Article 10 objection, a plaintiff in another country could properly serve an American defendant by mail as long as service by mail is permitted under the law of the forum.

      You wrote: “Since international treaties are not self-executing in Canada, they must be implemented by each province and territory.”

      This point is relevant when a party in another country wants to require a Canadian province to take some action. For example, if I want to serve a summons in a province that has not implemented the Convention, I might be out of luck in a practical sense (even though the self-executing or non-self-executing status of a treaty as a matter of domestic law does not, I think, affect the obligation of states that are party to the treaty as a matter of international law–see Medellin v. Texas for an example of the United States violating its obligations under international law because the federal government, which had not implemented a non-self-executing treaty through legislation, could not require Texas to adhere to the treaty). But the validity of US service of process in a US lawsuit does not depend on whether Canada or its provinces have implemented the treaty.

      Now, whether Ontario would recognize and enforce a US judgment obtained after service of process by mail in Ontario is another question, and one I’d be interested to hear your thoughts on!

      Reply
    2. Ted Folkman

      I should add that there is one other wrinkle under US law: Rule 4(f)(2)(C) permits service by mail only if not “prohibited” by foreign law. I believe the rule should be read to permit service by mail unless service by mail is expressly forbidden by the law of the foreign country, but not all courts take that view. Here is a snippet from Wright & Miller, the leading treatise on federal civil procedure:

      As the text of Rule 4(f)(2)(c)(ii) indicates, personal service and service by mail may be utilized by parties unless prohibited by the law of the foreign country. However, not all courts agree on what this phrase means. On one hand, Rule 4(f)(2)(c)(ii) can be interpreted to bar parties from using any method of service not explicitly prescribed by the laws of the foreign country. However, this reading of the rule seems inconsistent with the text on its face, which indicates that personal service and service by mail are permissible so long as they are not forbidden by the foreign country’s laws. Other courts have adopted this view.

      But again, this is a question of US law and the interpretation of Rule 4(f)(2)(C), not a question of Canadian law.

      Reply
  3. Antonin I. Pribetic

    Here’s an excerpt of Rule 17.05 of the Ontario Rules of Civil Procedure (implementing the Hague Service Convention):

    MANNER OF SERVICE OUTSIDE ONTARIO

    Definitions

    17.05 (1) In this rule,

    “contracting state” means a contracting state under the Convention; (“État contractant”)

    “Convention” means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters signed at The Hague on November 15, 1965. (“Convention”) R.R.O. 1990, Reg. 194, r. 17.05 (1).

    General Manner of Service

    (2) An originating process or other document to be served outside Ontario in a jurisdiction that is not a contracting state may be served in the manner provided by these rules for service in Ontario, or in the manner provided by the law of the jurisdiction where service is made, if service made in that manner could reasonably be expected to come to the notice of the person to be served. R.R.O. 1990, Reg. 194, r. 17.05 (2).

    Here’s a short article by a colleague of mine, Brett Harrison that confirms the requirement of personal service of originating process: http://www.mcmillan.ca/Files/BHarrison_Examinations%20of%20Canadians.pdf

    “Now, whether Ontario would recognize and enforce a US judgment obtained after service of process by mail in Ontario is another question, and one I’d be interested to hear your thoughts on!”

    If a US judgment were obtained after service of process by mail in Ontario—unless the Ontario defendant subsequently attorned to the US jurisdiction—it is unlikely that an Ontario court would recognize and enforce the US judgment.

    Reply
    1. Ted Folkman

      I’m not sure I get it: Rule 17.05(2), which you quoted, applies to service of process outside of Ontario when the action is pending in Ontario. I’m not sure what that has to do with service of process inside Ontario when the action is pending elsewhere. Also, the rule applies to service “in a jurisdiction that is not a contracting state,” which suggests to me that it doesn’t apply to US/Canadian cross-border litigation in any event. Maybe I am missing something.

      The Harrison article is silent on service by mail. If, as you are suggesting, the article means that service by mail under the Convention on a Canadian defendant is impermissible, I guess I disagree for the reasons I have already given, and most centrally, because the validity of the service in this case is judged under the law of the forum, not the law of the place of service.

      We have had a good dialogue on a couple of posts, both on your blog and on mine. I’m glad to have made a connection with a fellow law blogger.

      Reply
  4. Antonin I. Pribetic

    The Harrison article addresses the requirement of personal service of originating process of a US complaint.

    The Rule 17.05(2) excerpt was provided for illustrative purposes and to demonstrate how “service out” is dealt with under the Ontario rules. Note that the rule addresses service on either a Contracting State or non-Contracting State. By analogy, if validity of service out is determined ” may be served in the manner provided by these rules for service in Ontario, or in the manner provided by the law of the jurisdiction where service is made…”, then you will note that Canadian standards differ from US standards vis-a-vis the Hague Service Convention.

    The bottom-line is: whether service by mail is considered valid under US state or federal law, it is irrelevant on the enforcement side.

    We can agree to disagree and I enjoyed our dialogue as well.

    Reply
  5. Antonin I. Pribetic

    P.S.

    Article 15 of the Hague Service Convention provides:

    Article 15

    Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that –

    a) the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or
    b) the document was actually delivered to the defendant or to his residence by another method provided for by this Convention,

    and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

    …

    Reply
    1. Ted Folkman

      Yes, but the question whether a default judgment may enter is different from the question whether the service was proper, and in any case, it’s not clear to me that service by mail would not qualify under Article 15(b) as a form of service “by another method provided for by this Convention.” I know of a French case holding that service by mail on a defendant in Germany was not service “by another method provided for by this Convention,” but only because Germany had objected to service by mail under Article 10(a). I don’t know of a case holding the converse, but my view is that service by mail, like service by the consular channels or the other methods of service prescribed by the Convention, would qualify as service “by another method provided for by this Convention.”

      Reply
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