Macleod J

1.2: Purpose and intention of these rules
11.25: Real and substantial connection
11.27: Validating service

Case Summary

Posco Daewoo Corporation (“Daewoo”), a firm headquartered in South Korea, applied to set aside three Orders of the Alberta Court of Queen’s Bench (“ABQB”) relating to validating service and appointing arbitrators in an arbitration between the parties. The Plaintiff, Acciona/Pacer Joint Venture (“APJV”) contracted with the City of Edmonton to carry out the construction of the Walterdale Bridge in Edmonton, Alberta (the “Project”). APJV in turn subcontracted with Daewoo to supply materials for the Project (the “Subcontract”).

The Subcontract provided that all disputes arising from the Subcontract would be resolved by arbitration. In November of 2016, APJV issued a notice to submit disputes to arbitration. Following Daewoo’s failure to properly respond to the arbitration commenced by APJV, APJV served an Originating Application on counsel for Daewoo and concurrently attempted to serve Daewoo in accordance with the Hague Convention on the Service Abroad of Judicial and Extra-Judicial documents in Civil or Commercial Matters (the “Hague Convention”).

Daewoo attempted to set aside three of the Court’s Orders including: the Order validating service of the Originating Application pursuant to Rule 11.27; the Order appointing arbitrators in the arbitration reportedly commenced by APJV; and the Order consolidating the arbitrations of the Parties. Daewoo asserted that APJV had not complied with the Rules of Court, specifically, the service ex-juris requirements set out in Rule 11.25. Daewoo further argued that Rule 11.25 constitutes the complete code for service of documents outside Canada and APJV’s failure to comply with this Rule meant the impugned Orders were invalid.

Macleod J. noted that one of the main purposes of Rule 11.25 is to allow the Court to make a preliminary determination as to whether it is appropriate for the Court to take jurisdiction over a proposed defendant. Rule 11.25 allows the Court, prior to service, to satisfy itself that there is a real and substantial connection between Alberta and the facts on which the claim in the action is based. Macleod J. stated, referring to Rule 1.2, that the Rules should be interpreted in such a way that timely justice is served and not denied. His Lordship found that Rule 11.27(1) allows the Court to make an order validating the service of a document, served inside or outside Alberta, if the Court is satisfied that the method of service used is likely to have brought the document to the attention of the party to be served.

Justice Macleod concluded that the Court has jurisdiction over Daewoo by virtue of the agreements signed by the Parties. As such, it was unnecessary for APJV to comply with Rule 11.25 relating to service out of the jurisdiction and, accordingly, it was entirely appropriate for the Court to validate service under Rule 11.27. Justice Macleod held further that the two arbitration notices were properly consolidated. Macleod J. dismissed the Application and affirmed the Court’s previous Orders.

View CanLII Details