Change to Alberta Court Rules Eases Service Under Hague Convention

by Bennett Jones LLP

A new Alberta Court Rule seeks to avoid an unfortunate implication that courts  have read into the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters. Effective July 25, 2013, an amendment to the Alberta Rules of Court allows the validation of service of Alberta process outside of Canada that was not effected in accordance with the Hague Convention.  We have previously discussed the controversy here and here, beginning with the Alberta Court of Appeal’s decision in Metcalfe Estate v Yamaha Motor Powered Products Co Ltd, 2012 ABCA 240 and its important implications for the service of documents from Alberta into international jurisdictions.  In Metcalfe, the Court held that service of Alberta process in Hague Convention signatory states must comply with the Hague Convention, and cannot otherwise be validated by the Alberta courts.  That could render some defendants immune from being sued in Alberta if the foreign state simply refuses to serve the Alberta document on sovereignty or security grounds, as the Hague Convention allows it to doThe new rule clearly aims to soften this ruling and mitigate the mandatory requirements for service of Alberta process under the Hague Convention.

Rule 11.27 of the Alberta Rules of Court provides a court with discretion to validate the service of a document inside or outside Alberta if the method of service used brought or was likely to have brought the document to the attention of the person to be served.  In Metcalfe, the plaintiffs relied on this rule to validate the service ex juris of several Japanese companies by registered mail, instead of serving through the Japanese Central Authority designated under the Hague Convention.  While service was validated in first instance, that order was overturned by the Court of Appeal.  The majority of the Court held that in order to uphold Canada’s treaty obligations and the principles of comity among nations, compliance with the Hague Convention is mandatory for service of Alberta process in signatory states.  Thus, the Court could not validate a method of service not permitted by the Hague Convention. The courts in Ontario have reached a similar conclusion.

However, the new amendment to Rule 11.27 adds a provision allowing for the validation of service of Alberta process effected in international jurisdictions. Rule 11.27(4) will now state:

(4)  Subrules (1) to (3) apply despite

(a)  any previous order that permitted or directed service of the document by a particular method, and

(b) the fact that the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters applies to service of the document.

This new addition to the rule for validation of service suggests that regardless of the application of the Hague Convention, an Alberta court may validate service into a Hague Convention signatory state where the method of service used brought or was likely to have brought the document to the attention of the person to be served.  Appearing to overrule the decision in Metcalfe, and depart from what appears to be the Ontario practice, an Alberta plaintiff can now validate service of Alberta process to an international defendant through an alternative method of service, even where the Hague Convention applies.

While this new amendment clearly aims to mitigate the demanding requirements for service of Alberta process under the Hague Convention, it remains to be seen whether the rule will be broadly or narrowly applied.  In Metcalfe, the Court of Appeal emphasized and relied on comity and on Canada’s international obligations as a signatory of the Hague Convention in the service of documents abroad.  Arguably, the new Rule 11.27(4) provides Alberta courts with a general discretion to override these international obligations as a matter of civil procedure.

As this new amendment is considered and applied in Alberta, we can expect further developments on this issue.  We recommend that clients continue to seek legal advice with respect to the application of the Hague Convention for the service of Alberta process outside of Canada.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bennett Jones LLP | Attorney Advertising

Written by:

Bennett Jones LLP

Bennett Jones LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.