Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel

In today’s lecture we will talk about service of court documents in Ontario.  This lecture deals specifically with matters / proceedings in the Superior Court of Justice in Ontario.  It does not deal with matters that relate to small claims court.  However, the Rules relating to service are quite similar in small claims court and in superior court.  You will benefit from this lecture even if your matter is in small claims court. This topic has come a few times. I had interactions with some of you who had specific questions about service of documents in their own proceedings.  Then I ended up dealing with this matter, in one of my own court cases, where on behalf of my client I had to bring a motion to the court and ask for a relief on substituted service—not something that we will cover today.  It has become an important topic so I thought it would be prudent to cover it now.  We begin with our usual disclaimer that this course is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or contact the Law Society of Ontario to get a referral.

There are different types of court documents. Some of these documents are a Statement of Claim; Notice of Action; Notice of Application; Statement of Defence; Counterclaim; Third Party Claim; Crossclaim; Reply; Affidavit of Documents, etc. All these documents are referred to in the Ontario Rules of Civil Procedure.  How do you serve those documents on different parties? That is all specified in the Rules of Civil Procedure.  We’re going to focus today on the service of originating process which is an important topic.  Why are we going to talk about the originating process?  We will cover that.  Let me explain what an originating process is.  This is covered under Rule 1.03(1). There are specific documents that are considered documents of originating process. Statement of Claim, obviously, Notice of Action, Notice of Application, An Application for a Certificate of Appointment of an Estate Trustee, a Counterclaim against a person who is not already a party to the main action, and a Third Party or subsequent party claim. If you go to Google; go to the Rules of Civil Procedure; open it right here under Rule 1.03(1) Definitions. The originating process is defined here and these are specific documents that are listed here which constitute originating process. Why do you need to effect proper service for the originating process? Why is this so important? I think you can understand from the nature of these documents that these are the documents (originating process documents) are the ones that actually start a court proceeding.  If it’s a claim, then it’s starting a court action; if it’s an application then it’s starting an application.  Any originating process is the very 1st document that allows you or a party to commence a proceeding in the Superior Court. Now there is a separate process of going to court, filing your Statement of Claim, getting the court file number and having it issued. Once that document is issued the Rules require you to serve that originating process—statement of claim; that notice of action—on to the other parties because then the parties involved would know that they are involved in that proceeding.   They, then, have an opportunity to defend themselves or defend their position in that proceeding.  If the originating process is not served on any of the parties, then the situation that may arise is that the defendant or respondent may not even know about a proceeding.  Put yourself in the shoes of a defendant (if someone commences a court action against you). For example, the allegations may be that your dog may have bit that person.  That person brought a court action against you for certain damages. That person goes into the court, files a statement of claim and gets that issued.  But if you don’t know that there is a court action against you, you have no opportunity to defend yourself. And if you’re not participating in that proceeding, then what can happen is, the applicant or the claimant has the opportunity to seek default remedies because there are specific timelines.  If you have not responded or you have not filed your statement of defence or other court documents that are necessary to participate in that court proceeding then, after the timeline is over, the applicant or the claimant can go to the court and say that the defendant or the parties / the respondents / the defendants have not participated / have not filed their statement of defence and I want a default judgment against those individuals or those parties.  Once the claimant or the applicant can get a default judgment then they can proceed to have the enforcement of that default judgment.  It’s a pretty significant remedy for an applicant to proceed—absent a defendant or respondent participating in the court process.  Because the applicant can go and get a default judgment, the courts are very concerned about issuing / granting of default judgment when there is no defendant or respondent present. Ideally what courts like is for all the parties to show up, all the parties to present their positions to the court, present the evidence and then the court can decide who is right and who is wrong.  If there’s only one party before a judge / before the court and the other party is not present, then the natural question that arises in the court’s mind is whether the party that is not present knows that there is a court action against them.  When you proceed with that motion for default judgment / default remedies, then the court is going to examine how you conducted the service of your originating process.  

The court is going to look at the Rules and the court is going to look at what actions you took to serve those documents.  If you did not take the steps that are required by the Rules of Civil Procedure, the court will send you back and will not grant you the remedy that you’re asking for.  That is why it is most important that the originating process be served properly.  You are aware of all the Rules that are imposed with respect to the service of the originating process.  Rule 16 of the Rules of Civil Procedure is the one that specifically deals with service of all kinds of documents.  Rule 16.01 deals with the service of originating process.  Rule 16 basically says: “an originating process can be served personally or by alternative to personal service”.   Let us look briefly at what is meant by a personal service? And, what is meant by an alternative to personal service?  Personal service is specified in Rule 16.02. When you read those rules and I’ll take you there.  We will quickly go through the Rules on the website.  The Rules are very specific. They have specific requirements. If you are to service the document on an individual I mean a municipality, a corporation, a minor, a mentally incapable person, a crown, a person who is absent—there are different kinds of parties based upon their circumstances and there are different obligations on you to ensure that the service is properly effected on these parties. For example, if you’re serving the originating process on an individual, the easiest way of doing a personal service is by leaving a copy of the document with the individual.  We see this often being played in the movies when someone is sitting at a restaurant and a person comes in and approaches them, addresses them, confirms their identity “are you so and so” “Mr. So and So” and the seated person says yes, then the other person hands over a document saying you’ve been served.  You don’t have to in Canadian jurisdiction say the wording “you have been served”, you just need to provide the document.  One of the nuances of this, is, that it is not necessary for that person to take the document from your hand – that’s not your obligation.  If the person refuses to take the document, you can just leave it in front of that person – on the table, on the ground and just walk away.  You’re not required to ensure that the person accepts that document from your hand as long as you confirm the identity and you have either handed over the document or left it in front of that person and walked away.  That will be sufficient in terms of a personal service on an individual.

With respect to a corporation, you can serve the originating process on an officer, director or agent of the corporation or with any person at any place of business with the corporation who appears to be in control or management of that business.  Obviously, if you know the identity of the officers or directors or agents of the corporation you can serve it on them, otherwise the common practice is that you go to one of the offices of the corporation and if they have a reception you serve it at the reception.  That will generally be considered sufficient personal service.

Let’s go down to Rule 16.01 to have a quick look at it. As I mentioned Rule 16.01 basically says that originating process shall be served personally or by an alternative to personal service.  If you scroll down Rule 16.02 (is the one that I just briefly went over) it talks about how to serve an Individual, Municipality, Corporation, Board or Commission, Person outside Ontario carrying on business in Ontario, Crown in Right of Canada, Crown in Right of Ontario, Attorney General, Absentee, Minor, Mentally incapable person, Partnership or Sole Proprietorship. All of these categories are specified here.  If you are dealing—the common ones are individuals or corporations.  If you’re dealing with an entity that is not one of those 2 categories then you need to review the specific rules and then understand and follow them.  Alternative to personal service is under Rule 16.03.  Let’s quickly look at the Rule. Alternative to personal service obviously means that if you could not effect personal service then you have an option to do it and by alternative means.  One of the alternative means is that you can serve the document (the originating process) at the place of residence of that person. If you scroll down [Rule 16.03 (5)] Service at Place of Residence: “where an attempt is made to effect personal service at a person’s place of residence and for any reason personal service cannot be effected;” (i.e., the person is not there that you want to effect service to and you are unable to serve that person personally) “the document may be served by (a) leaving a copy, in a sealed envelope addressed to the person, at the place of residence with anyone who appears to be an adult member of the same household.” It cannot be a person who is a minor.  You cannot serve it on them. You can serve it on the person spouse or parents or any adult member who appears to be belonging to the same household.  That’s step number one (in a sealed envelope).  Then, “(b) on the same day or the following day by mailing another copy of the document to the person at the place of residence, and service in this manner is effective on the 5th day after the document is mailed.”  There are basically 2 steps if that person is not present at the residence. You leave it with an adult member of that household and then the next day you have to send another copy by mail to the same place of residence if you don’t follow this step number 2, then the service will not be effective. That’s an example of effecting service at the place of residence. Another example could be, acceptance by a lawyer.  If, for example, you are serving documents on one of my clients and you cannot locate my client or you wish to serve it on me because you know that I’m the lawyer, then you contact me and you say that I am willing to serve the document on you as their lawyer.  Important for you to know is that I need to confirm to you that I have the authority to accept the service on behalf of that client. That person / that party may be my client on other matters but I may not have the authority to deal on behalf of that client on this specific matter that you are dealing with.  Acceptance by the lawyer is important unless the lawyer is already a ‘lawyer on record’ in the court record.  Then you don’t need to have a specific approval from the lawyer. Another example of alternative service is last known address. Once you know the last known address of the person you can effect service there.  Let’s look at how you do that. Rule 16.03 (4) Go to Service by Mail to Last Known Address: Service of a document may be made by sending a copy of the document together with an acknowledgement of receipt card (Form 16A) by mailing to the last known address of the person to be served, but service by mail under this subrule is only effective as of the date the sender (which is you) receives the card.” What this means, is, when you’re mailing it to the last known address you send the card, the person accept and signs the card, sends it back to you—when you receive it only then the service is effective.  That’s now generally.  With respect to service on a corporation, you can find out the last known address of the corporation from the Ministry of Government and Consumer Services.  You go to the Ministry (there is a branch in downtown) and then you get what’s called the Corporation Profile Report.  That will indicate the last address that is recorded in the government records of that corporation.  If you mail that document (the originating process) on that recorded address, then the service will be effective.

It can get complicated but as I mentioned the service originating process is crucial. It’s very important.

You need to make sure you do it properly. There are organizations / companies called process servers. These are companies that are specialized in serving court documents. That’s what they do all day long. You can always google them, find one in your jurisdiction, contact them and ask them to effect service on your behalf. That maybe at a little bit of cost to you—it is not significant.  I think that maybe an easier way to ensure that the documents are properly served and the process servers know that once they have effected the service they will provide you with an Affidavit of Service.  They will do the whole thing and you will not have any issues if you have to appear before the court to prove the service of documents.

Now a topic that I have not covered but to which I alluded to in the beginning is something called substituted service or dispensing with the service.  What if you try all of the above things and you were still not able to serve? You can actually under Rule 16.04 bring a motion before the judge and get an order for substituted service—meaning other ways of effecting service that you think will bring the originating process to the knowledge and attention of the parties or completely dispensing with the service.  There may be circumstances where you believe that service simply cannot be effected and you want the court to dispense with it.  In that case you’ll have to bring a motion and you’ll have to explain to the judge why you couldn’t do personal service or alternative to personal service and why substituted service or dispensing with the service is appropriate. There may be circumstances where you may be able to show to the court that the effective way of serving is by e-mail, by Facebook, Twitter or an Instagram account. In a motion that I recently brought, I was able to explain to the judge why email service will bring the originating process to the attention off that party.  The court granted me that permission.  If you have to explain—it has to be a reasonable position, it needs to make sense and then the court will grant you the remedy. Service on a lawyer who is not a lawyer on record: as I mentioned, if I am a lawyer for that party but not on the specific matter, then you can ask me and I can refuse to accept service then you can bring a motion and explain to the judge that Mr. Mushtaq is counsel for that party in an existing proceeding, so he’s obviously in contact with that party.  I want the court to order that if we serve the originating process on Mr. Mushtaq, this will be an appropriate service and should be accepted. That’s also a possibility that you can get court’s permission to serve on a lawyer that you know is in contact with that party and will be able to communicate your originating process to the party.

In conclusion, you need to carefully review Rule 16. I’ve shown you some parts of it but depending upon your circumstances, you want to make sure that you review it, you understand it and then you ensure that the service is effected pursuant to the Rules of Civil Procedure.  You then, ensure that you have the proper Affidavit of Service prepared and it’s ready if you need to bring a motion to the court for default judgment.  The court is going to ask you how did you affect service? And do you have an affidavit of service? If it was not you, and someone else affected service. 

Thank-you for listening. Thank-you for watching.  If you have any specific questions on this topic, please do not hesitate to send us an e-mail or contact us and we’ll happy we’ll be happy to address that in another lecture.