METCALF ESTATE v YAMAHA MOTOR POWERED PRODUCTS CO LTD, 2012 ABCA 240
HUNT, MCDONALD AND BIELBY JJA
11.26: Methods of service outside Alberta
11.27: Validating service
The Respondent Plaintiff, who was injured in an all-terrain vehicle accident, obtained an Order for Service Ex Juris for the Japanese parent company of the Defendant manufacturer. Service was effected by sending the Statement of Claim to a Japanese lawyer who then served the Defendant by Registered Mail. At Trial, this was deemed effective and Service was validated through Rule 11.27. The Appellant Defendants appealed.
Mr. Justice McDonald, (Bielby and Hunt JJA concurring), stated that Rule 11.27 permits validation when the manner of Service is not specified in the Rules, and it potentially applies to any of the Rules in Part 11, Divisions 1 through 5. However, Rule 11.26 is to be differentiated from the other Rules on Service: it requires considerations beyond whether the document was brought, or was likely to be brought, to the attention of the foreign Defendant. Rule 11.26(1)(b) adopts and employs the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters which requires attention to international obligations. Justice McDonald concluded that Rule 11.27 could not be used to validate service when the Respondents had failed to comply with the Order granted pursuant to Rule 11.26(1)(b). The Appeal was allowed and the Order Validating Service was set aside.View CanLII Details