Following 801 Seventh Inc.’s (“801”) successful receipt of Orders permitting service ex juris, and subsequently validating that service, Madam Justice Dilts presided over this Application to set aside both Orders. In determining that the Application should be dismissed, Her Ladyship clarified that an Application to set aside an Order for service ex juris is properly brought pursuant to Rule 11.31, as opposed to Rule 9.15. Justice Dilts also concluded that an Order to validate service can be granted pursuant to Rules 11.27(1) and 11.27(4)(b) in a manner consistent with the principles of the Hague Convention, so long as evidence can be offered which shows that service was either affected or frustrated.

The Applicant also sought to invalidate the service ex juris Order pursuant to Rule 11.25(3) on the basis that several misstatements made by the articling student who obtained that Order compounded and were ultimately fatal. Madam Justice Dilts addressed these apparent deficiencies, and concluded that although the articling student may have conveyed some factual inconsistencies, the dispositive evidence necessary to determine whether to grant the ex parte Application was properly put before the Court.

Lastly, Madam Justice Dilts examined the threshold requirement read into Rule 11.25(3) that an Applicant must demonstrate a good arguable case. Her Ladyship held that to make out a good arguable case, it is not necessary to tender evidence of every single cause of action, as an Applicant is permitted to plead in the alternative.