Civil Practice Points – Substituted Service

 

In addition to the Building Blocks, we are pleased to introduce a Civil Practice Points, where we will be discussing various simple yet important key points to note for individuals and practitioners dwelling in civil litigation.

As many may know, unlike what you see in the movies, civil litigation (for the most part) is a back-and-forth exchange of various documents. When exchanging these documents, there are rules which govern how said documents must be delivered or “served”. Depending on the type of document or stage of a proceeding, service may be effected by methods as simple as facsimile or regular mail. However, certain document—such as originating processes and others—must be personally served onto the responding/defending parties. This means that, not only do you have to know where these responding/defending parties are located, but you must also find them and serve the specific documents to them, in person.

Theoretically, and in a cooperative and efficient world, this sounds simple enough. Find a person and give them the document. Practically, however, and since people generally do not voluntarily want to participate and defend themselves in legal proceedings, these individuals tend to evade personal service by intentionally making themselves unavailable or going into hiding. Hunting an evasive person becomes unnecessarily lengthy and expensive. For this reason, the Rules of Civil Procedure allow for a process waiving the requirement to personally serve such evasive individuals.

Motions for Substituted Service

In order to obtain “leave”—or permission—from the Courts to allow the effecting of service by means other than personal service (such as facsimile, regular mail, etc.), a party must make an interim appearance by way of a Motion. At this Motion, the party will rely on Rule 16.04 of the Rules of Civil Procedure, which indicates that

“where it appears to the Court that it is impractical for any reason to effect prompt service of an originating process or any other document required to be served personally or by an alternative to personal service under these rules, the Court may make an order for substituted service or, where necessary in the interest of justice, may dispense with service.[ Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 16.04.1

As Rule 16.04 contemplates, in order for the Court to grant this interim remedy, the party must show that it is impractical to effect prompt service of the documents. This means that the party must demonstrate that they have taken all reasonable steps to serve the respondent/defendant. They must also show that they have exhausted all means to serve the respondent/defendant and that no other means are available.2

A party can demonstrate the above by showing any of the following:

  • The party has limited knowledge of where the respondent/defendant is located;

  • The party has attempted personal service three or more times at the above-noted places;

  • While attempting to personally serve the document, the respondent/defendant has demonstrated evasive conduct, such as refusing to answer the door, ignoring phone calls, or fleeing; and

  • The party has incurred significant expense and spent a long time attempting to effect personal service.

These Motions for substituted service are common place and, as long as the party provides the Court with enough evidence and material in their Motion Records to demonstrate why substituted service is necessary, these Motions may be brought in writing without personal attendance before the Court.

The foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of Sutherland Law's Civil Lawyers by email or telephone.

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1 Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 16.04.
2 Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 213, para. 56.

 
Sutherland Law Staff Writer