T-4620-81
Saas Advertising, Inc. (Plaintiff)
v.
J. Breed Clothing, Inc. and Algo Industries, Ltd.
(Defendants)
Trial Division, Cattanach J.—Ottawa, December
15 and 21, 1981.
Practice — Order for service out of the jurisdiction —
Motion to rescind an ex parte order granting leave to serve the
applicant ex juris and to set aside the service of the notice of
the statement of claim so served — Order does not specifically
state in which place or country the notice of the statement of
claim may be served — Whether the order is invalid because it
is silent as to the geographical limits wherein the defendant
may be served — Motion dismissed — Federal Court Rules
307, 330, 401.
All Transport Inc. v. The "Rumba" (1981) 112 D.L.R.
(3d) 309, referred to.
MOTION.
COUNSEL:
W. Charles Kent for plaintiff.
J. G. Potvin for defendants.
SOLICITORS:
Burke- Robertson, Chadwick & Ritchie,
Ottawa, for plaintiff.
Scott & Aylen, Ottawa, for defendants.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: The defendant, J. Breed Cloth
ing, Inc., (hereinafter called the "applicant") has
applied for leave to file a conditional appearance
herein pursuant to Rule 401 for the purpose of,
amongst other things, objecting to the service of a
notice of the statement of claim upon the appli-
cant-defendant out of the jurisdiction.
That leave was granted and a motion was forth
with made, as anticipated in the notice of motion,
to rescind, under Rule 330, the ex parte order
dated September 24, 1981 whereby leave was
granted to serve the applicant ex juris and in the
event of the success of that application, as the next
logical consequence, to set aside the service of the
notice of the statement of claim so served.
The body of the order so granted pursuant to
Rule 307 reads:
Upon hearing counsel for the plaintiff and upon hearing read
the affidavit of W. Charles Kent filed on the 23rd day of
September, 1981, it is ordered that the plaintiff, Saas Advertis
ing, Inc., be at liberty to serve a notice of the statement of
claim or declaration out of the jurisdiction against J. Breed
Clothing, Inc.; and it is further ordered that the time within
which the said defendant is to file his defence be within 30 days
after the service thereof and that the costs of this application be
in the cause.
Rule 307 reads:
Rule 307. (1) When a defendant, whether a Canadian citizen,
British subject or a foreigner, is out of the jurisdiction of the
Court and whether in Her Majesty's dominions or in a foreign
country, the Court, upon application, supported by affidavit or
other evidence showing that, in the belief of the deponent, the
plaintiff has a good cause of action, and showing in what place
or country, such defendant is or probably may be found, may
order (Form 5) that a notice of the statement of claim or
declaration may be served on the defendant in such place or
country or within such limits as the Court thinks fit to direct
(Form 6).
(2) An order under paragraph (1) shall fix a time, depending
on the place of service, within which the defendant is to file his
defence or obtain from the Court further time to do so.
(3) If any problem arises concerning service of an originating
document in a matter other than an action, an application may
be made to the Court for directions.
(4) An application for an order under this rule may be made
ex parte.
The order granted pursuant to Rule 307 (both
the order and the Rule are quoted immediately
above), is in the exact language contemplated by
Form 5 to Rule 307.
In All Transport Inc. v. The `Rumba" ((1981)
112 D.L.R. (3d) 309) it was held that paragraph
(2) of Rule 307 which requires that the order
under paragraph (1) shall fix a time within which
the defendant shall file his defence, is cast in
mandatory terms and the failure to include that
direction in the order is not a mere irregularity but
rather renders such an order invalid and which
must be set aside and that service of such an
invalid order must likewise be invalid and set
aside.
Counsel for the applicant herein contends that
the order here sought to be impugned is likewise
invalid in that the order does not specifically state
in which place or country or within which territo
rial limits the notice of the statement of claim may
be served on the defendant.
He points out that the order is completely silent
as to the geographical limits wherein the defend
ant may be served outside Canada and contends
that such omission is fatal to the validity of the
order just as the omission to recite the time within
which a defence must be filed makes such an order
a nullity.
The first consideration in an application for
service ex juris is whether it is appropriate that a
defendant resident outside the territorial jurisdic
tion should be so served bearing in mind the
interference with the sovereignty of the foreign
country where service is to be effected, the most
convenient forum to try the matter and a legal
nexus arising from act or conduct of the foreign
defendant which relates to the territorial jurisdic
tion of this Court. No such difficulty arises in this
instance. There is an alleged infringement, in
Canada, of a trade mark registered in Canada by a
trader resident elsewhere but carrying on business
in Canada. Therefore an order for service ex juris
on the alleged infringer outside Canada was
warranted.
One of the matters that an applicant is required
by paragraph (1) of Rule 307 to establish is, "in
what place or country, such defendant is or prob
ably may be found". That information is necessary
to determine if the order should be given and
service can be effected and if so within what time
the order shall fix within which the defendant
must file his defence (see paragraph (2) of Rule
307).
In Ontario the form of notice prescribed specifi
cally states that if service is in the United States
the time to file the defence shall be forty days and
elsewhere sixty days.
In England there is an exhaustive table of times
set up depending upon the country in which service
is effected.
In the rules of those two jurisdictions neither
specifies that the order shall include a direction at
what place or country within which the defendant
shall be served but forms approved by judicial
direction and those appended to the Rules do so
provide.
Federal Court Rule 307(1) after stating that
information showing in what place or country a
defendant is or may be found shall be forthcoming
in the supporting material then continues to state
that the Court "may order (Form 5) that a notice
of the statement of claim ... may be served on the
defendant in such place or country or within such
limits as the Court thinks fit to direct (Form 6)."
First the Court has the discretion to grant or
refuse the order. If discretion is exercised to grant
the order the Court has the discretion to direct in
what place or in what country or within such limits
the notice of statement of claim shall be served on
the defendant.
If the Court so directs in the order then the
order may only be served where it is directed to be
served. Accordingly the practice of making the
order as wide as is reasonable in the circumstances
is a sensible practice.
The practice which I have consistently followed
and which is adopted by most of my brother judges
to whom I have spoken has been to give the
address in a city, town or other municipality, if
that address is given in the supporting material, at
which the defendant is to be served and I add "or
elsewhere in" and then I name the country within
which service is to be effected. By way of example
an order might read, "and to serve the same on the
defendant at the City of Tokyo or elsewhere in
Japan". My own preference is not to specify an
address within the city unless the applicant so
requests thereby permitting greater latitude.
But as the concluding portion of paragraph (1)
of Rule 307 reads it also vests in the Court the
discretion of directing that the defendant be served
at a specified place outside Canada or not so
directing.
Form 5 to Rule 307 reads:
Upon hearing and upon hearing read the affidavit
of filed on the day of 19 , and , it is
ordered that the plaintiff, be at liberty to serve a
notice of the statement of claim or declaration out of the
jurisdiction against ; and it is further ordered that the
time within which the said defendant is to file his defence be
within days after the service thereof and that the costs
of this application be
That is the form adopted as the order in this
instance as that order has been reproduced at the
outset.
All that the Form provides is that the applicant
is given liberty to serve a notice of the statement of
claim out of the jurisdiction plus the mandatory
direction that a defence shall be filed within a
specified time dictated by distance.
It makes no provision whatsoever for space
within which to insert the place and country in
which service is to be effected as is the case in the
approved forms in the United Kingdom and
Ontario.
In the light of the conclusion that I have
reached that Rule 307 bestows a discretion on the
Court either to omit or include in the order a
reference to the place and country of service, the
omission of language to that effect from Form 5
follows logically.
Accordingly it would follow that the Judge who
gave the order dated September 24, 1981 without
naming the place must have exercised his discre
tion not to do so from which it follows that the
order is not invalid and the service ex juris conse
quent thereon is valid.
The motion is therefore dismissed with costs to
the plaintiff in any event in the cause.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.