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Fairness - Service. Riddle v. ivari
In Riddle v. Ivari (SCC, 2026) the Supreme Court of Canada resolved a Quebec "pronouncement of a declaratory judgment of death" case.
The court considered service as a 'procedural fairness' issue, here in this Quebec context:29] Service is a cardinal rule of our procedural law. Under the Code of Civil Procedure, “[a]n originating application must be served on the defendant and the other parties” (art. 140 C.C.P.), in other words, notified by bailiff (arts. 110 para. 2 and 139 para. 1 C.C.P.). The purpose of the notification of pleadings is to bring a document to the attention of the persons concerned (art. 109 C.C.P.). Notification embodies the principle [translation] “of universal fairness” by which every person should be informed of proceedings that may affect their rights in order to give them an opportunity to be heard, that is, to present arguments and advance their interests (Alliance des Professeurs Catholiques de Montréal v. Quebec Labour Relations Board, 1953 CanLII 45 (SCC), [1953] 2 S.C.R. 140, at p. 154; see also J. S. Vaillancourt, “Article 109”, in L. Chamberland, ed., Le grand collectif: Code de procédure civile — Commentaires et annotations (10th ed. 2025), vol. 1, at p. 873). Service gives effect to the audi alteram partem rule, which is a [translation] “venerable principle” among the “fundamental principles of justice” and is entrenched in art. 17 C.C.P. in the chapter entitled “Guiding Principles of Procedure” (see D. Ferland and B. Emery, Précis de procédure civile du Québec (7th ed. 2025), vol. 1, at para. 1-157). Dickson J., referring to common law jurisprudence, described this rule as follows: “The tribunal must listen fairly to both sides, giving the parties to the controversy a fair opportunity ‘for correcting or contradicting any relevant statement prejudicial to their views’” (Kane v. Board of Governors (University of British Columbia), 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105, at p. 1113, quoting Board of Education v. Rice, [1911] A.C. 179, at p. 182).
[30] The right to be heard cannot simply be disregarded by applying the principle of proportionality set out in art. 18 C.C.P. (Sani-Terre Environnement inc. v. Villéco inc., 2021 QCCA 326, at paras. 3-7). This right is a rule of procedural fairness that is of public order and that transcends the interests of the parties concerned, because it safeguards the nature and integrity of the judicial process itself (Robillard v. Commission Hydroélectrique de Québec, 1954 CanLII 50 (SCC), [1954] S.C.R. 695, at p. 699; Gestion Bon Conseil inc. v. Guèvremont, 2006 QCCA 109, at para. 197). The Code of Civil Procedure does not provide for any specific sanction for failure to effect service. Such a breach is not, however, without consequences. When the irregularity is so serious that it undermines the innate fairness of the trial and compromises the integrity of the judicial process, it may have significant procedural consequences, such as the peremption of the application and loss of jurisdiction by the court. This is the case where the failure to effect service prejudices a party by depriving them of a real and meaningful opportunity to present their submissions.
[31] That being said, every failure to effect service or other irregularity in service will not automatically lead to such consequences, where the integrity of the judicial process is not otherwise compromised. This is why Quebec jurisprudence recognizes that a party may not raise an irregularity in service if the party had knowledge of the proceeding brought against them and was not prejudiced by that failure (Droit de la famille — 192513, 2019 QCCA 2139, at para. 50). In such a context, the absence of prejudice makes it possible to conclude that the fairness of the trial and the integrity of the judicial process were preserved, given that the parties were able to know of the existence of the proceeding, assert their rights and make their submissions.
[32] The determination of the sanction that may be applicable to a breach of the obligation to effect service therefore remains contextual: it must take into account the practical and foreseeable consequences of the failure, not only for the parties and third parties, but for the integrity of the judicial process itself. As with the revocation mechanism set out in art. 345 C.C.P., it is only when the absence of service is such as to bring the administration of justice into disrepute — notably by depriving an interested person of the opportunity to participate in the legal debate — that a court may refuse to hear a proceeding for which notification has not been made or has been made irregularly.
[33] The practical difficulties that may surround service, for example because an individual is far away or there is no known address, do not relieve a party of the obligation to bring to the attention of another party, or of any interested person, the existence of a proceeding that may affect their rights. Article 112 C.C.P. allows a court to authorize notification of a pleading by a special method when the circumstances so require. The court may then, in a discretionary manner, authorize any method of notification that makes it possible [translation] “both to seize the court and to effectively inform [the recipient] of the content of the application made against [them]”, including by technological means (art. 133 C.C.P.) or by public notice (art. 135 C.C.P.) (S.A. Louis Dreyfus & Cie v. Holding Tusculum B.V., 1998 CanLII 12964 (QC CA), [1998] R.J.Q. 1722 (C.A.), at pp. 1728-29). However, the burden is on the applicant to show that they tried, though unsuccessfully, to locate the recipient.
[34] When the person sought to be served with a pleading resides in a foreign state, reference should be made to art. 494 C.C.P., which establishes the rules applicable to international notification. The procedure varies depending on whether the state concerned is or is not a party to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Can. T.S. 1989 No. 2. If the state is a signatory, the methods of notification set out in the Convention apply. When the state is not a party to the Convention, as is the case for Iran, notification is made in accordance with the provisions of Book I of the Code of Civil Procedure or the law in force in the state where notification is to be made. In the latter case, the court may, under art. 494 para. 2 C.C.P., authorize on request a different method of notification if the circumstances so require (F. Sabourin, “Les demandes intéressant le droit international privé”, in D. Ferland and B. Emery, eds., Précis de procédure civile du Québec (7th ed. 2025), vol. 2, 389, at para. 2-958).
[35] Ivari had an obligation to serve its originating application on any person concerned, and primarily on Mr. Imanpoorsaid, whose juridical personality, and all rights flowing therefrom, were affected by the annulment judgment. If ivari believed that he was alive, it could have taken steps to try to inform him of the proceedings concerning him, especially since, under art. 98 para. 2 C.C.Q., the cost of the application for annulment ultimately had to be assumed by Mr. Imanpoorsaid himself. Ivari did not do so, and this failure must be underscored. The absence of service is also surprising given that ivari had hired lawyers in Iran to find him and stated at trial that it had obtained his telephone number. It is difficult to understand why ivari did not continue its efforts to locate him after having obtained that information.
[36] Contrary to what ivari argues, this is not a situation in which substance must prevail over form. Pleading failure to effect service is not what the trial judge described as “proceduralism”, that is, applying procedural rules in a nitpicky way that would lead to a result contrary to common sense. The Code of Civil Procedure contains requirements of public order that relate to fairness, and it would be wrong to trivialize a breach of these standards under the pretext that it is an irregularity in form — which it is not — or under the cover of the principle of proportionality. However, I am of the view that, since Mr. Imanpoorsaid was not prejudiced, this breach did not undermine the integrity of the judicial process. It follows that this failure should not entail the nullity of the trial judgment and the Court of Appeal’s decision.
[37] Procedural requirements must be contextualized in light of the substantive rights that they protect and that justify them (Mohawk Council of Kanesatake v. Sylvestre, 2025 SCC 30, at paras. 71-72). In most cases, failure to give a party an opportunity to present their arguments will be such a serious breach of the audi alteram partem rule that it will necessarily undermine the integrity of the judicial process. In this case, however, the imperatives related to preserving the adversarial process are of reduced importance. An application for annulment of a declaratory judgment of death, normally a non-contentious proceeding, is an exception to the usual court proceedings in the sense that it does not require the person declared dead to make submissions or arguments. Proof of the return of a person declared dead is sufficient to have a declaratory judgment of death annulled under art. 98 C.C.Q. The presence of the “returnee” at the hearing simply facilitates such proof, but does not alter the outcome. In this case, no ground raised by Mr. Imanpoorsaid could have changed the outcome of the application. Ivari had no interest in not serving its proceeding on him and derived no benefit from not doing so. Paradoxically, the absence of service was even advantageous to Ms. Riddle, because the presence of the person declared dead would have bolstered ivari’s evidence that he was currently alive. The absence of service therefore did not prejudice Mr. Imanpoorsaid or compromise the integrity of the judicial process more generally, and it could not justify the dismissal of the application.
[38] Consequently, as the Court of Appeal concluded, while it would have been preferable and prudent for ivari to attempt to notify the proceeding to Mr. Imanpoorsaid, this ground cannot justify intervention by this Court.
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