Metcalfe v. Yamaha Motor Canada Ltd., 2011 ABQB 807

Court of Queen ’ s Bench of Alberta Citation: Metcalfe v.

Yamaha Motor Canada Ltd., 2011 ABQB 807 Date: 20111219 Docket: 0901 05449 Registry: Calgary Between: Stephanie Metcalfe, the Estate of Teah Metcalfe, Deceased, by Her Administrator Ad Litem, Jay Metcalfe, Tyler Jay Metcalfe, an infant by his Next Friend, Jay Metcalfe, Trent Metcalfe, an infant by his Next Friend, Jay Metcalfe, Jean-Marc Lachance, Marie-Paule Gauthier, John Metcalfe and Geraldine Metcalfe Plaintiffs/Respondents - and - Yamaha Motor Canada Ltd., Yamaha Motor Manufacturing Corporation of America, Yamaha Motor Corporation, U.S.A., Yamaha Motor Powered Products Co., Ltd. and Yamaha Motor Co., Ltd.

Defendants/Applicants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice P.M. Clark _______________________________________________________ Background [ 1 ] On or about April 13, 2007, Teah Metcalfe was a passenger in a Rhino side-by-side all-terrain vehicle (“the Rhino”) owned by her great-uncle and driven by her mother, Stephanie Metcalfe. Stephanie and Teah were riding on the Rhino at the family ranch in the vicinity of the hamlet of Beaver Mines, Alberta, proceeding at a slow speed on flat terrain when suddenly and without warning, the Rhino tipped over.

Teah, who was then five years of age, died as a result of the accident.

[ 2 ] Stephanie Metcalfe alleges she suffered serious personal injuries from the tip-over, including significant damage to her knee ligaments, cracked ribs and a concussion, for which she was hospitalized. [ 3 ] The Plaintiffs are part of a larger class of people who retained the Toronto law firm of Rochon Genova LLP (“Rochon”) which filed a class action law suit against the Defendants in December 2008 (the “Rochon Class Action”).

The Rochon Class Action was experiencing certain jurisdictional issues. [ 4 ] In April 2009, McLennan Ross was retained by Rochon to file this Alberta action (“the Alberta action”) as a means of protecting the Plaintiffs’ rights in the event that the Rochon Class Action did not proceed. [ 5 ] McLennan Ross filed a Statement of Claim in the Alberta action on April 21, 2009 alleging that the tip-over accident occurred because of design and manufacturing flaws.

Named as Defendants are Yamaha Motor Canada Ltd., a Canadian company; Yamaho Motor Manufacturing Corporation of America, a United States company with a principle office in the state of Georgia; Yamaha Motor Corporation, U.S.A., a United States company with a principle office in California; Yamaha Motor Powered Products Co., Ltd., a Japanese company with head office in Japan; and Yamaha Motor Co., Ltd., a Japanese company which is described as the parent company of all the other named Defendants.

It is alleged that Yamaha Motor Co., Ltd. exercises de facto and de jure management and control over all of the other named Defendants. The Yamaha companies with head offices in Japan are hereinafter collectively referred to as “the Japanese Defendants”. [ 6 ] On April 7, 2010, McLennan Ross was instructed by Rochon to serve the Canadian Defendant Yamaha Motor Canada Ltd.

At that time, an order for service ex juris had not yet been obtained with respect to the remaining Defendants. [ 7 ] On April 9, 2010, a McLennan Ross lawyer, appeared before a Master in Chambers seeking a renewal of the Statement of Claim in the Alberta action. The Statement of Claim was renewed for a further period of 3 (three) months extending the Statement of Claim until June 9, 2010.

The Master’s Order stipulated “the Statement of Claim be renewed for a further period of 3 (three) months in which service may be properly effected upon the remaining unserved defendants in this action”. [ 8 ] On June 3, 2010, McLennan Ross obtained an order for service ex juris permitting service of the Alberta action Statement of Claim on the non-resident Defendants, including the Japanese Defendants. It is this Order which gives rise to the application before me.

The wording of the Order is as follows: UPON the ex-partie application of the Plaintiffs; AND UPON it appearing that the Defendants, Yamaha Motor Manufacturing Corporation of America, Yamaha Motor Corporation, U.S.A., Yamaha Motor Powered Products Co., Ltd. and Yamaha Motor Co., Ltd. are located outside of the jurisdiction of this Honourable Court; AND UPON reading the Affidavit of Stehpanie Metcalfe, file; AND UPON hearing Counsel for the Plaintiffs; IT IS HEREBY ORDERED THAT: 1.

The Plaintiffs are given leave to serve ex juris a copy of the filed Statement of Claim, together with a copy of this Order, upon the Defendant, Yamaha Motor Manufacturing Corporation of America, Yamaha Motor Corporation, U.S.A., Yamaha Motor Powered Products Co., Ltd. and Yamaha Motor Co., Ltd. pursuant to the Articles of The Hague Convention on the Service Abroad Judicial and Extra-judicial Documents in Civil or Commercial Matters (the “Convention”). [emphasis added] 2. The Statement of Claim shall be renewed for an additional six months from the date that this Order has been entered. 3.

The above referenced Defendant shall have 60 days from the date of service ex juris of the Statement of Claim and this Order in which to file a Statement of Defence or Demand of Notice. 4. Costs of this application shall be costs in the cause.

[ 9 ] There is no issue with respect to the service of the Statement of Claim on the Canadian company or the two American “Yamaha” companies. [ 10 ] On June 30, 2010, the Statement of Claim and order for service ex juris , both in English and Japanese, were served on the Yamaha Motor Co. Ltd. at its address at 2500 Shingai, Iwat-shi, Shizuoka-Ken, Japan and Yamaha Motor Power Products Co.

Ltd. at its address 200-1 Sakgawa, Kakegawa-shi, Shizuoka-Ken, Japan. [ 11 ] Service on both Japanese Defendants in Japan was effected by Yutaka Akatsuka, an attorney practicing in Tokyo with the law firm of Kojima Law Offices, who sent the Statement of Claim and Order for Service ex juris along with certified true translations of both documents to each of the Japanese Defendants by registered mail. Akatsuka received delivery certificates from Japan Post Service Co.

Ltd., for each of the packages sent to the Japanese Defendants, which stated that the registered mail sent to the Japanese Defendants were delivered. [ 12 ] There is affidavit evidence on the file to the effect that these delivery certificates would only be issued if the documents had actually been received by an addressee, and if the addressee were to refuse the document, the delivery certificate would not issue. [ 13 ] Both of the Japanese Defendants were in receipt of the Statement of Claim in the Alberta action in both the English and Japanese versions prior to the expiration of the initial three-months renewal of the Statement of Claim. [ 14 ] The Alberta Rules of Court , Alta.

Reg. 124-2010 (“Rules”) contemplate service under the Hague Convention. Rule 11.26(1) states: 11.26(1) Unless the Court otherwise orders, if a document may be served outside Alberta under these rules, the document must be served (

a) by a method provided by these rules for service of the document in Alberta, (

b) in accordance with a method of service of documents under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters that is allowed by the jurisdiction in which the document is to be served, if the Convention applies, or (

c) in accordance with the law of the jurisdiction in which the person to be served is located.

(2) Service is effected under this rule, (

a) if the document is served by a method of service provided for service of documents in Alberta, on the date specified by these rules for when service is effected, (

b) if the document is served under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, on the date service is effected under the Convention, or (

c) in accordance with the law of the jurisdiction in which the person is served. [ 15 ] Stevenson & Coté at page 11-34 of the Rules states:

Rule 11.26(2)(

b) allows service under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (November 15, 1965). The Convention supplements and does not forbid other methods of service. A method of service named in this Convention cannot be used if the government of the place of service has formally objected to that method to the Department of External Affairs of the Netherlands. The Convention does not apply if the address of the person to be served is not known, but otherwise applies in all civil or commercial matters.

The Convention allows several methods of service: 1. Each country designates a Central Authority within its country, and documents may simply be sent to the Central Authority of the country where the person to be served resides; the Central Authority will serve and provide proof of service. The Central Authority will use either the local method of service, or a method requested by the applicant, or deliver to the addressee who accepts it voluntarily. If the Central Authority is used, it may require that the document be written in or translated in one of the local official languages. 2.

Directly through Canadian diplomatic or consular agents. 3. Sending directly by postal channels to the person to be served. 4. Any method agreed on by the two countries concerned.

It is no bar to service that the country where service is to be made claims exclusive jurisdiction, or that its local law would not permit such a lawsuit. [ 16 ] The Applicants take the position that the Order specifically directed that service be carried out in accordance with the articles of the Hague Convention and that proper service in this case required strict compliance with the directions of the Justice granting the court order for service ex juris , and that in this case, the new Rules notwithstanding, the Court should not exercise its discretion to validate the service of the Statement of Claim on the Japanese defendants. [ 17 ] I disagree with the position of the Applicants.

Had the Order for Service ex juris stated “shall serve”, then service according to the Convention would be mandatory. In this instance, the order states “are given leave to serve ex juris ”.

I interpret “given leave” to be permissive in the circumstances. [ 18 ] The specific issue before the Court on this application is whether service on the Japanese Defendants of the Statement of Claim should be validated by this Court. [ 19 ] Rule 11.27(1) of the Rules states: On application, the Court may make an order validating the service of a document served inside or outside Alberta in a manner that is not specified by these rules if the Court is satisfied that the method of service used brought or was likely to have brought the document to the attention of the person to be served.

(2) On application, the Court may make an order validating the service of a document served inside or outside Alberta if the Court is satisfied that the document would have been served on the person or would have come to the attention of the person if the person had not evaded service.

(3) If service is validated by the Court under this rule, service is effected on the date specified in the order. [ 20 ] There is no dispute that the Statement of Claim and the Order for Service ex juris were brought to the attention of the Japanese Defendants. [ 21 ] Counsel have provided me with a copy of

Article 14 of the Hague Convention which sets out the rules for “service abroad of judicial and extra-judicial documents in civil or commercial matters”. This convention contains 31 separate articles dealing with service of documents and has been in place since it was concluded on November 15,

Article 10 of the Convention stipulates: ... provided the state of destination does not object, the present convention should not interfere with – (

a) the freedom to send judicial documents, by postal channels, directly to persons abroad, (

b) the freedom of judicial officers, officials or other competent persons of the state of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the state of destination, or (

c) the freedom of any person interested in a judicial proceeding to effect the service of judicial documents directly through the judicial officers, officials or other competent persons of the state of destination.

The present convention shall not prevent two or more Contracting States from agreeing to permit, for the purposes of service of judicial documents, channels of transmission other than those provided by in the preceding articles and, in particular, direct communication between respective authorities”. [ 22 ] Any application with respect to the Rules of necessity starts with a consideration of what are called the Foundational Rule. Division 1 of the Rules sets forth “purpose and intention of these Rules”.

The “Information Note” at the first page of the Rules indicates that the new Rules : sets the stage for all the other rules.

It describes the philosophy underlying the rules through purpose and intention statements, and then sets out · the general authority of the Court to provide remedies, · the general authority of the Court to make procedural orders, · a means to correct contraventions and non-compliance with the rules and irregularities in proceedings that are not fatal to a claim, · the authority of judges to amend the rules, and · how the rules are to be interpreted. [ 23 ] In stark contrast to the requirement for service under the Hague Convention articles, the Rules give the Court discretion to validate service outside of Alberta even if such service was not done in a manner that is specified by the Rules , so long as the Court is satisfied that the method of service used was likely to bring the document to the attention of the person being served.

Rule 11.27(1) states: 11.27

(1) On application, the Court may make an order validating the service of a document served inside or outside Alberta in a manner that is not specified by these rules if the Court is satisfied that the method of service used brought or was likely to have brought the document to the attention of the person to be served.

Decision [ 24 ] I have considered the arguments of counsel and conclude that the Japanese Defendants have been properly served and that an order should issue validating the service of the documents served on the Japanese Defendants. Heard on the 7 th day of March, 2011. Dated at the City of Calgary, Alberta this 19 th day of December, 2011. P.M. Clark J.C.Q.B.A. Appearances: James P. Flanagan Maeghan E. Toews McLennan Ross LLP for the Plaintiffs/Respondents Jeffrey D. Vallis Chidinma Thompson Borden Ladner Gervais LLP for the Defendants/Applicants