With the strong economic ties between British Columbia and China, it is not rare that a litigant in British Columbia may need to involve a person in China in a BC civil proceeding, either as party or otherwise. However, there are legal and practical issues to resolve to effectively serve BC legal documents in China.
Take legal documents in a civil proceeding before the Supreme Court of British Columbia for example, Rule 4-5 of the Supreme Court Civil Rules (SCCR) governs their service outside British Columbia. Rule 4-5(10) stipulates three permissible means of service: a document may be served in a manner (1) permitted by the SCCR, (2) provided by the law of the place where service is made if the document would reasonably be expected to come to the notice of the person to be served, or (3) provided by or permitted under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Convention), signed at the Hague on November 15, 1965, if the service is in a contracting state under the Convention.
According to case law, the three means of service are alternative to each other, and a litigant may choose any one of them to serve legal documents in China under the SCCR (2538520 Ontario Limited v. Eastern Platinum Limited, 2022 BCSC 1101 [2538520] at para 13). However, there are significant compatibility issues between the rules governing different means of service.
Under the SCCR, the responsibility for effecting service lies primarily with the litigant seeking service. A key means of service permitted under the SCCR is personal service, which is the primary means for serving originating pleadings such as notices of civil claim (Rule 4-3(1) of the SCCR). Once a litigant, acting by itself, serves a legal document personally on the person to serve in a foreign jurisdiction in accordance with the SCCR, the validity of the service is recognized in BC (Tamlin International Homes v. Ikoma, 2001 BCSC 1039 [Tamlin] at paras 7 and 9).
Where personal service is impractical because the person to serve cannot be found by a diligent search, or is evading service, an order may be made to allow service by an alternative means, also known as substitutional service (Rule 4-4(1) of the SCCR). To apply for an order for substitutional service in China, an unsuccessful attempt must have been made with reasonable diligence to personally serve legal documents there (2538520 at para 16). The unsuccessful attempt may have been made by the litigant itself (see 2538520), or by a Central Authority that China has designated under the Convention at the request of the litigant, if personal service has been specified in the request (see Xu v. Xu, 2020 BCSC 1529 at paras 29 to 32).
On the other hand, neither the Chinese law nor the Convention permits a foreign entity to personally serve foreign legal documents in China by itself.
Under the Chinese law, rules governing service of domestic legal documents are distinct from those governing service of foreign legal documents. According to Section 294 of the Chinese Civil Procedure Law (CPL), last amended as of September 1, 2023, foreign individuals or organizations may not serve foreign legal documents in China without authorization by the Chinese authorities. if a request is made to the Chinese authorities for serving foreign legal documents in China, where an international treaty applies, the request will be handled in accordance with that treaty.
Both Canada and China are contracting states under the Convention, which provides in Article 1 that “[t]he present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.”
A request for serving foreign legal documents in China must be submitted online to the International Legal Cooperation Center (ILCC), agent of the Chinese Ministry of Justice, the Central Authority of China designated under the Convention. For each party to serve, one request must be submitted. The request received will be reviewed by ILCC. If it accepts the request, ILCC will issue a notice to the requesting litigant for payment of a processing fee. Once the processing fee is paid in full, ILCC will forward the request to the Supreme People’s Court, which will further forward the request to the relevant local people’s court to arrange for service. If service is successful, a certificate of service will be issued to the requesting litigant.
The official estimated time for execution for a request is around 6 months. No urgent service is available. If the litigant requesting service has specified a means of service in its request, unless the specified means is contrary to the Chinese law, service will be carried out by that means. Otherwise, the service will be carried out either by direct service on the address provided or the person named in the request. If direct service is impractical, other alternative means of service allowed under by the CPL may be employed, which may include by posting on public media. A decision to employ an alternative means of service, however, appears to be solely or primarily in the discretion of the local People’s Court charged with carrying out the requested service. It does not appear that the litigant requesting service may provide any input to the exercise of that discretion.
It is possible for ILCC to reject a request for service in China under the Convention for political reasons. For example, a request was rejected because a pleading to serve had addressed Taiwan only as “Taiwan,” but not as “Taiwan, China,” which China regards as its rogue province.
If a litigant personally serves by itself an originating pleading in China in accordance with the SCCR, while the validity of the service is recognized under the SCCR, it will likely be denied under both the Chinese law and the Convention. For that reason, if the litigant subsequently obtains a BC judgment, it may have difficulty enforcing it in China (Tamlin in para 17). Therefore, the litigant must choose the means of service in China strategically.
Rules in some other Canadian jurisdictions governing service in China differ from those under the SCCR. For example, Rule 17.05 of the Rules of Civil Procedure, RRO 1990, Reg 194, of Ontario and Rule 137 of the Federal Courts Rules, SOR/98-106 both make it mandatory to comply with the Convention for service in a contracting state. It is unknown if British Columbia will amend or reinterpret the SCCR in the future to follow the practice in those jurisdictions.
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Song Xue is a senior litigator, with extensive experience representing his clients in complex litigation before all levels of court in British Columbia.
An adept problem solver, Song has experience handling a range of complex commercial matters including real property litigation, construction and renovation, partnerships, breach of contract and corporations and trust disputes. He has also represented clients in family matters involving property issues.
Song has created a reputation for himself providing business-focused solutions to his clients’ complicated issues. He prides himself on his simple and concise communication. One of his greatest strengths lies in his ability to relate to clients with diverse backgrounds.
Charlotte Lam is an associate working with the firm’s commercial litigation, environmental, and insurance law groups. She attended law school at the University of Alberta and completed her articles with Harper Grey before being called to the BC Bar in 2025.
Recognized for academic excellence through the Bruce Jones Memorial Scholarship and UBC’s Perry Bar Hall and Trek Excellence Scholarships, she combines a strong foundation in advocacy with a commitment to equitable access to justice.