The case of the day, Dierig v. Lees Leisure Industries, Ltd. (E.D. Ky. 2012), is yet another example of a US case holding that service by mail in Canada is permissible. I have suggested, in a series of posts and comments here and at Antonin Pribetic’s Trial Warrior Blog, that I think service by mail in Canada is indeed permissible. I want to delve into this issue a little more closely and make it clear that my view, for cases in the federal courts anyway, depends on an opinion about the meaning of Article 10(a) of the Hague Service Convention on which not all American courts agree.

The plaintiff, Thomas Dierig, sued Lees Leisure, a British Columbia motorcycle trailers, on a products liability claim. Dierig served the summons and complaint on Lees in British Columbia via international registered mail, without first obtaining leave of court. Lees Leisure moved to dismiss. The judge denied the motion.

The judge’s discussion focuses on issues we have seen before. Article 10(a) of the Hague Service Convention provides:

Provided the State of destination does not object, the present Convention shall not interfere with–

a) the freedom to send judicial documents, by postal channels, directly to persons abroad,

Although the provision uses the word “send” instead of “serve”, the judge correctly held, with a majority of American courts, that it was intended to permit service of the summons and complaint, and not just transmission of other judicial or extrajudicial documents, by postal channels. The judge also correctly noted that Canada had not objected to service by postal channels. He even provided a helpful list of the many cases holding that service by mail in Canada is permissible under the Convention.

Here is where I think the judge may have gone wrong. The method of service must not just be authorized by the Convention; it must be authorized by the law of the forum, which in this case means the Federal Rules of Civil Procedure. Rule 4(f)(1) authorizes service by

any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.

But there is a debate—indeed, a circuit split—about whether Article 10(a) affirmatively authorizes service by postal channels (Ackermann v. Levine, 788 F.2d 830 (2d Cir. 1986), as interpreted by cases such as Papir v. Wurms, 2005 WL 372061 (S.D.N.Y. 2005)), or whether Article 10(a) merely permits service by mail (Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004)) . If the first view is right, then service by mail is always permissible unless the state of destination has objected. If the second view is right, then service by mail is permissible, the absence of an objection by the state of destination, only if the Federal Rules of Civil Procedure affirmatively authorize it. Rule 4(f)(2)(C)(ii) does authorize service by mail, but only if the law of the foreign state does not prohibit it and only if dispatched by the clerk rather than the plaintiff. I have previously written, in the comments to the post on Progressive Southeastern Insurance Co. v. J&P Transport, that I think the first view is right, but I could be wrong about that!

Here it appears that the plaintiff’s lawyer, not the clerk, sent the summons and complaint. If that’s right, and if the second of the two views given above is correct, then the service was improper under US law. (What is the practical implication? In the federal courts, there’s no harm in asking the clerk to transmit the documents even if it is not strictly necessary. Why force the court to take sides in the dispute over what Article 10 means?)

It may also be, as Antonin has argued, that Canadian law (either federal law or the law of the relevant province) does not allow service by mail. Again, though, it is necessary to distinguish between prohibiting service by mail and simply not authorizing it.

If Canadian law does prohibit service by mail—and I defer entirely to Antonin on that question—and if the second of the two views given above is correct, then the service would have been improper even if the clerk, rather than the plaintiff, had dispatched the documents. Similarly, if Canadian law prohibits service by mail, and if the second of the two views given above is correct, and if “prohibits”, in Rule 4(f)(2)(C)(ii) should be read to mean “does not authorize” instead of “affirmatively forbids”, then the service would have been improper even if the clerk had dispatched the documents.

It’s important to note, by the way, that everything I’ve said so far about the permissibility of service by mail applies only where the case is pending in the U.S. District Court. If the case is filed in a state court, then the law of the forum is that state’s rules of civil procedure rather than the Federal Rules of Civil Procedure. Take Massachusetts, for example. Mass. R. Civ. P. 4(e)(3) authorizes service outside of the Commonwealth “by any form of mail addressed to the person to be served and requiring a signed receipt”, without regard to foreign law and without requiring that the clerk dispatch the papers. So in an action in the Massachusetts Superior Court, in my view at least, service by mail in Canada is always permissible. The two limitations of Fed. R. Civ. P. 4(f)(2)(C)(ii)—transmission by the clerk and the permissibility of service by mail under the foreign law—simply do not apply.

I hope this shows that asking whether “service by mail is permissible in Canada” is not a simple question with a simple answer.