SERVING A CLAIM
An originating process (i.e., a statement of claim, notice of action, notice of application or application) is to be served personally in accordance with the Rules of Civil Procedure (Rules). Their are alternatives to this in specific situations. Unless a specific rule or order requires it, no other document has to be served personally or by an alternative to personal service. Such documents (not required to be served personally or by an alternative to personal service) can be served on a party’s solicitor of record in accordance with the rules or, in the case of a party acting in person or a person who is not a party, by mailing a copy of the documents to the last address for service provided by the party or person or, if no such address has been provided, to the party’s or person’s last known address; or personal service or by an alternative to personal service if you know where the person is.
There is no need to serve an originating process on a party who, without being served, has delivered a defence, notice of intention to defend, or notice of appearance. Likewise, certain documents need not be served in a formal manner, and the clause/rule mentioning it says that instead of “serve”, the solicitor “give” a copy.
Incidentally, the details with respect to service are quite specific so it is important to read carefully through the relevant rule(s) to ensure compliance.
How to Serve
In particular contexts, such as minors, persons who are mentally incapable, corporations, partnerships, sole proprietors, municipalities, and the Crown, personal service is specifically described in the Rules of Civil Procedure. Those rules answer all questions relating to the manner in which service should be effected, as illustrated in the three examples below:
Except a person under disability, personal service on an individual is made by leaving a copy of the relevant document with the individual. Usually, this is done by delivering a copy of the document into the hands of the person to be served, and bringing the document to the person’s attention. If it is refused, then one may resort to the common law rule that service is effected by touching the person with the document to be served, and then letting the document fall to the ground.
It is for the court to find that personal service has been effected, even though the document was not handed over. In these circumstances, the case law provides that the person to be served must be positively identified, the document to be served must be brought to the person’s attention, and the person must be made aware or shown to be generally aware of the nature of the document. If the person is already aware of the plaintiff’s claim, the person attempting service is not required to describe the contents of the document. The person effecting personal service of a document need not produce the original.
On a partnership, service is effected by leaving a copy of the document with any one or more of the partners, or with a person at the head office who seems to be the top guy. If the claimant is sure that the partnership has sufficient assets to satisfy any judgment that the claimant may obtain in the proceeding, service of both the originating process and notice to the alleged partner should be made on as many members of the firm as possible, so that their properties can be taken in the event of a favourable judgment.
On a municipality, it is necessary to leave a copy of the document with the chair, mayor, warden, or reeve of the municipality. Or with the clerk or deputy clerk of the municipality or a solicitor for the municipality.
Alternatives to Personal Service
If the Rules or an order of the court permit that, service may be made in accordance with one of the four options set out in rule 16.03 and listed as follows:
- Acceptance of service by a solicitor;
- Service by mail to last known address;
- Service at place of residence; and
- Service on a corporation. May be tricky when the head office, registered office, or principal place of business of a corporation cannot be found at the last address recorded with the Ministry of Consumer and Commercial Relations. Service in such instances may be made on the corporation by mailing a copy of the document to the corporation at that address.
This rule is applicable to a person who is inaccessible for service. It is to be supported by an affidavit showing that proper efforts have been made to serve the party personally and that prompt service is impossible. If the intention is to get an order providing for substituted service, the affidavit should demonstrate that the proposed method of substituted service will probably bring the document to the notice of the person to be served.
Proof of Service
Rule 16.09 provides that service of a document can be proved in a number of ways, like affidavits and so on.
Service Outside Ontario
According to rule 17.02, a party can be served outside Ontario (referred to as “service ex juris” before 1985) with an originating process or notice of a reference, without leave of the court, when the proceeding against the party consists of a claim or claims falling within the categories listed in that rule.
Serving a claim can be the most frustrating aspect in suing. Contact the lawyers at Levy Zavet PC, and ask us how best to proceed. The sooner you can effect service the sooner the clock starts counting down closer to noting the defendant/respondent in default, and obtaining default judgment.