T.P., INFANT, BY HIS LITIGATION GUARDIAN, STACY BERGER, PLAINTIFF - v. -, 2023 SKKB 65

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 65 Date: 2023 03 28 Docket: KBG-RG-02611-2022 Judicial Centre: Regina BETWEEN: T.P., INFANT, BY HIS LITIGATION GUARDIAN, STACY BERGER, PLAINTIFF - and - BYTEDANCE LTD.; TIKTOK TECHNOLOGY CANADA INC.; TIKTOK LTD; TIKTOK LLC; TIKTOK INC; TIKTOK PTE LTD., DEFENDANTS Counsel: Anthony Leoni and Sean P. Watson for the plaintiff ___________________________________________________________________________ FIAT POPESCUL C.J.K.B.

March 28, 2023 ___________________________________________________________________________ [ 1 ] The plaintiff applies by application without notice for an order appointing a designated judge to hear a class action certification application pursuant to Rule 3-90 of The Queen’s Bench Rules. [ 2 ] It is well settled that an application to appoint a designated judge pursuant to Rule 3-90 should only be considered after the applicant files sufficient proof of service of the claim upon each of the defendants. See Currie v Merck Canada Inc., 2013 SKQB 349 , 430 Sask R 93 .

I find that there is sufficient evidence to conclude that TikTok Ltd and Bytedance Ltd. were properly served with the statement of claim. I am also prepared to validate irregular service of TikTok Pte Ltd. pursuant to Rule 12-3 as I am satisfied that the entity received notice of the statement of claim.

However, for the reasons that follow, I find that the plaintiff has not yet filed sufficient evidence of service of the statement of claim in respect to the defendants, TikTok Technology Canada Inc., TikTok LLC and TikTok Inc. [ 3 ] Rule 12-11 of The Queen’s Bench Rules outlines the process for serving documents outside of Saskatchewan. It provides, in full: 12-11(1) Service of a document outside Saskatchewan may be effected:

(

a) in the manner provided by these rules for service in Saskatchewan if it is not incompatible with the law of the jurisdiction where service is made; (

b) subject to subrule (3) in the manner provided by the law of the jurisdiction where service is made; or (

c) in the manner provided in rule 12-12.

(2) Service of a document in the manner provided for service in Saskatchewan is deemed to be valid unless the person served shows that the service is incompatible with the law of the jurisdiction where service is made.

(3) Service of a document in the manner provided by the law of the jurisdiction where service is made must be made by a method by which the document can be reasonably expected to come to the notice of the person served, if the document is to be served: (

a) in a jurisdiction that is not a contracting state, as defined in rule 12-12; or (

b) in a jurisdiction that is a contracting state, as defined in rule 12-12: (

i) that has determined that the Hague Convention, as defined in rule 12-12 does not apply; or (ii) where the address of the person to be served is not known. [ 4 ] In the present circumstances, there is purported service pursuant to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters , concluded at the Hague Convention on November 15, 1965 [ Hague Convention ] or [ Hague Convention on Service ].

Rule 12-12 sets out the process for service pursuant to the Hague Convention and provides, in full: 12-12(1) In this rule and in rule 12-11: “central authority”, with respect to a contracting state, means the central authority that the contracting state has designated under the Hague Convention; “contracting state” means a state outside of Canada that is a signatory to the Hague Convention; “document” means a judicial or extrajudicial document in a civil or commercial matter; “forwarding authority” means the registrar, a local registrar or a lawyer; “Hague Convention” means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters , concluded at the Hague Convention on November 15, 1965.

(2) A statement of claim or other document that is to be served in a contracting state must be served: (

a) through the central authority in the contracting state; (

b) directly through a Canadian diplomatic or consular agent, unless: (

i) the document is being served on a national that is not Canadian; and (ii) the contracting state has declared that it is opposed to that method of service in its territory; (

c) through consular channels where the contracting state has designated an authority to receive requests for service through these channels; (

d) through diplomatic channels; (

e) by another method that is provided for by the Hague Convention and that is prescribed by rule 12-11, unless the contracting state has objected to that method; or (

f) by a method to which the Hague Convention is not opposed and that is prescribed by rule 12-11.

(3) If a statement of claim or other document is to be transmitted abroad for service in a contracting state pursuant to clause (2)(a), it must be filed with the forwarding authority and must be accompanied by: (

a) a request in Form 12-12A; (

b) a translation of each document in the official language or one of the official languages of the contracting state in which service is to be effected; (

c) a duplicate copy of each document; (

d) a request that the forwarding authority transmit each document and the translation in duplicate to the contracting state in which service is to be effected; and (

e) a deposit for fees and disbursements in an amount satisfactory to the forwarding authority.

(4) If the forwarding authority receives the documents, supporting material and deposit mentioned in subrule (3), the forwarding

authority shall forward all material to the central authority as provided for or permitted by the Hague Convention.

(5) A certificate in Form 12-12B completed and signed by the central authority of the contracting state, or any other designated authority for the contracting state, is proof of service when it shows that service has been effected by: (

a) personal service; or (

b) if service cannot be made personally, by a method that is consistent with the practice and usage of the contracting state.

(6) If a certificate in Form 12-12B is not received, judgment may be given under the conditions stated in

Article 15 of the Hague Convention, and, in the case of urgency, the Court may order any provisional or protective measures . [ 5 ] As stated above, Rule 12-11 permits service of a document outside Saskatchewan in the manner provided by The Queen’s Bench Rules , as long as the manner of service is not incompatible with the law of the jurisdiction where service was made. In the present case, each of the named defendants is purportedly a corporation. Rule 12-5, which outlines the mode of service on corporations, therefore applies: 12-5 Subject to the express provisions of any enactment, service of a document may be made: (

a) on a municipal corporation, by leaving a copy of the document with the mayor, reeve, clerk or secretary of the municipal corporation or their respective deputies; (

b) on a corporation incorporated or registered pursuant to any enactment, in accordance with the provisions for service of that enactment; or (

c) on any other corporation or on a corporation mentioned in clause (

b) if the enactment contains no provisions for service, by leaving a copy of the document with: (

i) any officer, director, agent or liquidator of the corporation; or (ii) any clerk, manager, agent or other representative of the corporation at or in charge of any office or other place where the corporation carries on business. [ 6 ] Having set out the relevant legal principles, I will proceed to explain why I have determined that service on some of the defendant corporations is valid and why some purported service is invalid.

Service on Bytedance Ltd. and TikTok Ltd [ 7 ] The statement of claim alleges that Bytedance Ltd. is a company incorporated in the Cayman Islands, with a principal place of business at Xueyan S Rd, Shuangyushu, Haidian District, China, 100080, and an address for service at PO Box 31119, Grand Pavilion, Hibiscus Way, 802 West Bay Road, Grand Cayman, KY1 - 1205, Cayman Islands.

It further alleges that TikTok Ltd is a company incorporated in the Cayman Islands, with subsidiaries in the United States and elsewhere with an address for service at PO Box 31119, Grand Pavilion, Hibiscus Way, 802 West Bay Road, Grand Cayman, KY1 - 1205, Cayman Islands. As both Bytedance Ltd. and TikTok Ltd are purportedly entities incorporated in the Cayman Islands, I will discuss the validity of service on both entities together. [ 8 ] The affidavit of Sean Watson provides that Bytedance Ltd. was served on December 16, 2022 pursuant to the Hague Convention .

In support of that claim, an affidavit of service sworn on December 23, 2022 by Shanna Solorzano, an employee of a law firm in George Town, Cayman Islands, was filed. This affidavit of service provides that Bytedance Ltd. was served with (1) the Hague Service Convention “Warning”; (2) the Hague Service Convention “Summary of the Documents to be Served”; (3) notice to defendant; (4) statement of claim with contact information and address for service; and (5) order (December 7, 2022) with contact information and address for service, by Ms. Solorzano delivering same to Bytedance Ltd.’s address for service.

A corporate profile was attached as “Exhibit B” to the affidavit of service, which illustrates that Bytedance Ltd. was served at its registered office, being PO Box 31119, Grand Pavilion, Hibiscus Way, 802 West Bay Road, Grand Cayman, KY1 - 1205, Cayman Islands. [ 9 ] The affidavit of Sean Watson further provides that TikTok Ltd was served on December 16, 2022 pursuant to the Hague Convention . In support of that claim, an affidavit of service sworn on December 23, 2022 by Ms. Solorzano was filed.

This affidavit of service provides that TikTok Ltd was served with the same documents that were served on Bytedance Ltd., as outlined above, by Ms. Solorzano delivering same to TikTok Ltd’s address for service. A corporate profile was attached as “Exhibit B” to the affidavit of service, which illustrates that TikTok Ltd was served at its registered office, being PO Box 31119, Grand Pavilion, Hibiscus Way, 802 West Bay Road, Grand Cayman, KY1 - 1205, Cayman Islands. [ 10 ] The affidavits of service sworn by Ms.

Solorzano in relation to the purported service on both Bytedance Ltd. and TikTok Ltd claim that service was effected according to the laws of the Cayman Islands and pursuant to the declaration of the United Kingdom to

Article 10(

b) of the Hague Convention . [ 11 ] The United Kingdom is a signatory to the Hague Convention on Service . As a territory of the United Kingdom, the Convention therefore applies in the Cayman Islands. [ 12 ]

Article 10 of the Hague Convention on Service provides that as long as the State of destination does not object, the Convention “shall not interfere with ...

b) the freedom of judicial officers, officials or other component 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”. [ 13 ] In the United Kingdom’s declaration relating to the Hague Convention on Service , it is noted that “documents

for service through official channels will be accepted in the United Kingdom only by the central or additional authorities and only from judicial, consular or diplomatic officers of other Contracting States”.

In a letter dated September 11, 1980 addressed by the Foreign and Commonwealth Office to the Permanent Bureau, the United Kingdom advised that their “declaration does not preclude any person in another Contracting State who is interested in a judicial proceeding (including his lawyer) from effecting service in the United Kingdom ‘directly’ through a competent person other than a judicial officer or official, e.g., a solicitor”. [ 14 ] I am thus satisfied that both Bytedance Ltd. and TikTok Ltd were validly served pursuant to

Article 10(

b) of the Hague Convention on Service as both entities were served at their registered head office by an employee of a law firm in the Cayman Islands, upon the direction of counsel. [ 15 ] Alternatively, service may also be valid if it was effected in a manner prescribed by Rule 12-11, provided that the manner is not prohibited by the Hague Convention . [ 16 ] Service was also effected in accordance with Rule 12-5(c), which permits service by leaving a copy of the document with certain specified corporate officials.

There is no evidence that service was effected on an officer, director, agent or liquidator of Bytedance Ltd. or TikTok Ltd. As such, service would only be valid in accordance with Saskatchewan law if the location where service occurred was the registered office of the corporations. Based on the affidavits of service of Ms. Solorzano, I can confidently conclude that service occurred at the registered offices of Bytedance Ltd. and TikTok Ltd and therefore would be valid pursuant to Rule 12-5(c)(ii). [ 17 ] However, service may only be effected pursuant to Rule 12-5(

c) if the enactment under which the corporations are registered is otherwise silent as to service. Given the lack of evidentiary material relating to the enactment under which Bytedance Ltd. and TikTok Ltd are incorporated, I am unable to conclude whether the enactment is silent as to service. Reliance on Rule 12-5(

c) is thus, in some respects, artificial. [ 18 ] Nevertheless, Rule 12-1(3) permits the Court to validate any irregular or unauthorized service of a document if the Court is satisfied that the person to be served received notice of the document.

Based on the material filed, particularly given that Bytedance Ltd. and TikTok Ltd were served with a copy of the statement of claim by an employee of a law firm at their registered offices in the Cayman Islands, as supported by a corporate profile, I am satisfied that they received notice of the statement of claim. [ 19 ] Service of the statement of claim is therefore deemed to be valid. Should Bytedance Ltd. or TikTok Ltd believe that service in this manner is incompatible with the applicable laws in the Cayman Islands, they bear the onus of demonstrating same pursuant to Rule 12-11(2).

Service on TikTok Pte Ltd. [ 20 ] The statement of claim alleges that TikTok Pte Ltd. is a company incorporated pursuant to the laws of Singapore with an address at 8 Marine View, #43-00, Asia Square Tower 1, Singapore 18960. [ 21 ] The affidavit of Sean Watson provides that TikTok Pte Ltd. was served on December 15, 2022, pursuant to the Hague Convention .

In support of that claim, an affidavit of service of Rafinyi Bin Ahlias dated December 28, 2022 was filed, which alleges that TikTok Pte Ltd. was served by a professional process server on December 19, 2022 by delivering a copy of the notice to defendant, statement of claim and the order of Tochor J. with Mr. Alvin Tan, an administrator with the company, at the registered head office of TikTok Pte Ltd. [ 22 ] The address at which the documents were served differs from the address listed as the registered office in the statement of claim.

Specifically, the affidavit of service provides that TikTok Pte Ltd. was served at 1 Raffles Quay, #26-10, Singapore 048583. However, “Exhibit A” of the affidavit of service contains the corporate profile of TikTok Pte Ltd., which lists the address of the location where service was completed as the registered address. [ 23 ] I pause here to note that, pursuant to the Hague Convention webpage, Singapore is not a signatory to the Hague Convention on Service . As such, service will be valid if it was completed in a manner provided by Rule 12-11(1)(

a) or (b). [ 24 ] Rule 12-11(1)(

b) permits service in a manner provided by the law of the jurisdiction where service is made. Here, aside from a brief comment in the affidavit of service, whereby the professional process server provided: “I believe service in this matter to have been effected according to the laws of the Republic of Singapore for cases heard in that jurisdiction”, no evidence has been provided as to the relevant law of Singapore relating to service.

As such, I am unable to conclude that service was completed in a manner provided by the law of Singapore, being where service was made. [ 25 ] I must then determine whether service was completed in a manner that accords with the relevant law in Saskatchewan pursuant to Rule 12-11(1)(a). For service to be valid pursuant to the relevant law in Saskatchewan, it would need to be completed in accordance with the provisions for service of the enactment under which the corporation is incorporated or registered. No evidence has been provided to indicate the enactment under which TikTok Pte Ltd. is incorporated.

As a result, the Court is unable to assess the validity of service under Rule 12-5(b). [ 26 ] Alternatively, if the enactment under which TikTok Pte Ltd. is incorporated is silent as to service, service may be effected in accordance with Rule 12-5(c). Here, there is no evidence that service was effected on an officer, director, agent or liquidator of TikTok Pte Ltd. As such, service would only be valid in accordance with Saskatchewan law if the location of service was at the registered office of the corporation.

Based on the affidavit of service of Rafinyi Bin Ahlias and supporting exhibits, I can confidently conclude that service occurred at the registered office of TikTok Pte Ltd. and is therefore valid pursuant to Rule 12-5(c)(ii). [ 27 ] However, service may only be effected pursuant to Rule 12-5(

c) if the enactment under which the corporation is registered is otherwise silent as to service. Given the lack of evidence relating to the enactment under which TikTok Pte Ltd. is incorporated, I am unable to determine whether the enactment is silent. Reliance on Rule 12-5(

c) is thus, in some respects, artificial.

[ 28 ] Nevertheless, Rule 12-1(3) permits the Court to validate any irregular or unauthorized service of a document if the Court is satisfied that the person to be served received notice of the document. Based on the material filed, particularly given that TikTok Pte Ltd. was served with a copy of the statement of claim by a process server at its registered office in Singapore, as supported by a corporate profile, I am satisfied that they received notice of the statement of claim. [ 29 ] Service of the statement of claim is therefore deemed to be valid.

Should TikTok Pte Ltd. believe that service in this manner is incompatible with the applicable laws in Singapore, they bear the onus of demonstrating same pursuant to Rule 12-11(2). Service on TikTok Technology Canada Inc. [ 30 ] The statement of claim provides that TikTok Technology Canada Inc. is a wholly owned Canadian subsidiary of Bytedance Ltd. with its address for service at 1700 - 777 Dunsmuir Street, Vancouver, British Columbia. [ 31 ] The affidavit of Sean Watson provides that TikTok Technology Canada Inc. was served with the statement of claim on December 15, 2022.

In support of that claim, an affidavit of service dated January 24, 2023 was filed, which alleges that TikTok Technology Canada Inc. was served by a process server on December 15, 2022 by leaving a copy of the “Order” and “Notice to Defendant” with “the Receptionist, Priya at 1700 - 777 Dunsmuir Street, Vancouver, British Columbia”. A copy of the November 16, 2022 order of Tochor J. relating to the appointment of a litigation guardian for the plaintiff, along with the statement of claim is appended to the affidavit of service. [ 32 ] Rule 12-11(1)(

b) permits service in a manner provided by the law of the jurisdiction where service is made. Here, no evidence has been provided as to the relevant laws in Vancouver, British Columbia relating to service. As such, I am unable to conclude that service was completed in a manner provided by the law of British Columbia, being where service was made. The onus to prove that the manner of service is valid is on the party who serves the document, not the Court.

Accordingly, where a party claims that service outside of Saskatchewan was validly effected, it must provide evidence not only of the manner of service, but also of the service provisions in effect in the jurisdiction where service was completed. [ 33 ] I must then determine whether service was completed in a manner that accords with the relevant law in Saskatchewan pursuant to Rule 12-11(1)(a).

For service to be valid pursuant to the relevant law in Saskatchewan, it would need to be completed in accordance with the provisions for service of the enactment under which TikTok Technology Canada Inc. is incorporated or registered. No evidence has been provided to indicate the enactment under which TikTok Technology Canada Inc. is incorporated. As a result, I am unable to assess the validity of service under Rule 12-5(b). [ 34 ] Alternatively, if the enactment under which TikTok Technology Canada Inc. is incorporated is silent as to service, service must be effected in accordance with Rule 12-5(c).

As the person served is not purported to be an officer or director of TikTok Technology Canada Inc., service would only be valid in accordance with Saskatchewan law if the office at which the service took place was the registered office of the corporation. While the statement of claim indicates that TikTok Technology Canada Inc.’s address for service is 1700 - 777 Dunsmuir Street, Vancouver, British Columbia, no evidence has been filed to support that claim.

Notably, a corporate profile has not been filed for TikTok Canada Inc. to establish that their address for service is 1700 - 777 Dunsmuir Street in Vancouver, British Columbia. As a result, I am unable to determine whether service was validly effected. Service on TikTok LLC and TikTok Inc [ 35 ] The statement of claim alleges that TikTok Inc is an American company incorporated in Delaware, United States, with an address for service c/o Harvard Business Services Inc., 16192 Coastal Hwy, Lewes, Delaware, 19958, United States of America.

It further alleges that TikTok LLC is an American limited liability corporation registered in the State of Delaware, with an address for service c/o Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware, 19808, United States of America. As both TikTok LLC and TikTok Inc are purportedly United States corporations, I will discuss the validity of service on both entities together. [ 36 ] The affidavit of Sean Watson provides TikTok Inc was served on December 15, 2022.

In support of that claim, an affidavit of service dated December 15, 2022 was filed, which alleges that TikTok Inc was served with the statement of claim and the order of Tochor J. by delivering them to the hands of “an officer or managing agent whose name and title is Allison Rathmanner, Authorized to Accept Service” at “16192 Coastal Hwy, in Lewes, DE, 19958”. [ 37 ] The affidavit of Sean Watson further provides that TikTok LLC was likewise served on December 15, 2022.

In support of that claim, an affidavit of service dated December 15, 2022 was filed, which alleges that TikTok LLC was served with the statement of claim and the order of Tochor J. by delivering them “into the hands of an officer or managing agent whose name and title is Legal Rep” at 251 Little Falls Drive in Wilmington, Delaware. [ 38 ] Rule 12-11(1)(

b) permits service in a manner provided by the law of the jurisdiction where service is made. Here, no evidence has been provided as to the relevant laws in Delaware relating to service. As such, I am unable to conclude that service was completed in a manner provided by the law of Delaware, being where service was made. [ 39 ] I again must then determine whether service was completed in a manner that accords with the relevant law in Saskatchewan pursuant to Rule 12-11(1)(a).

For service to be valid pursuant to the relevant law in Saskatchewan, it would need to be completed in accordance with the provisions for service of the enactment under which the corporation is incorporated or registered. No evidence has been provided to indicate the enactment under which TikTok LLC or TikTok Inc are incorporated. As a result, the Court is unable to assess the validity of service under subrule (

b) of Rule 12-5. [ 40 ] Alternatively, if the enactment(

s) under which TikTok LLC or TikTok Inc are incorporated is silent as to service, service may be valid if effected pursuant to subrule (

c) of Rule 12-5. No evidence was adduced relating to the formal positions of either person purportedly served in relation to the Delaware entities. It is unclear who Allison Rathmanner is, and whether she is an officer, director, agent or liquidator of TikTok Inc. Further, no individual is identified in relation to the purported service on TikTok

LLC. The affidavit of service simply states that a “Legal Rep” was served. [ 41 ] As the positions of the persons served are unclear, service would only be valid in accordance with Saskatchewan law if the office at which the service took place was the registered office of the corporation. The same evidentiary gap identified above in relation to TikTok Technology Canada Inc. is present in relation to TikTok Ltd and TikTok LLC. Corporate profiles have not been filed to establish the proper addresses for service on either Delaware entity.

To reiterate, the onus to prove that the manner of service is valid is on the party who serves the document, not the Court. CONCLUSION [ 42 ] The service provisions contained in The Queen’s Bench Rules are not intended or designed to operate as an obstacle to parties involved in the judicial process. Judges may vary or relieve a party from strict compliance with a Rule if no person is prejudiced and it serves the interests of justice.

When the Court must assess whether corporations were properly served in foreign jurisdictions, stricter compliance with the Rules will be expected to ensure that parties were given proper notice of a proceeding against them. [ 43 ] For the above noted reasons, the application without notice for an order appointing a designated judge to hear a class action certification application pursuant to Rule 3-90 of The Queen’s Bench Rules will not be granted at this time as I am not satisfied that TikTok Technology Canada Inc., TikTok LLC or TikTok Inc were properly served.

However, I grant the plaintiff leave to file additional material in support of this application. C.J.K.B. M.D. POPESCUL