Serving a Claim via Email (Substituted Service)

References

• Substituted_Service_(SCSM)

Overview

The Rules:

• 8.04 If it is shown that it is impractical to effect prompt service of a claim personally or by an alternative to personal service, the court may allow substituted service. O. Reg. 258/98, r. 8.04.

Requirements for Rule 8.04

• Cash Flow Recoveries Inc v Stearns, 2015 CanLII 63993 (ON SCSM)

"In this case, there appears to be no uncertainty as to the address at which the Defendants reside. While they may not have been co-operative in responding to the Plaintiff’s pre-litigation collection efforts, this is not sufficient, in my view, to establish that the Defendants are actively attempting to evade service. No attempt has been made by the Plaintiff to effect personal service under Rule 8.02. I also note that a failed attempt of personal service under Rule 8.02 would still permit service by alternative permitted under Rule 8.03(2)."

• Principles Extracted from Above:
  • There must be an uncertainty of the defendants' address
  • An attempt to effect personal service must have been attempted under Rule 8.02

• Spiegel v Intact Insurance Company, 2015 CanLII 4892 (ON SCSM)

A just determination of the real matters in dispute would not occur if I gave effect to the Plaintiff’s argument on this service point. While service by email was a technical breach of the Rules, in the circumstances I conclude that on the basis of Rule 2.01. I should not refuse to consider the Defendant’s submissions because they were served by email.

If necessary, and in the alternative, I conclude that the service by email should be permitted by virtue of an order for substituted service under Rule 8.04, and accordingly, even though it is after the fact, I order that service by email be authorized. Since the Plaintff was served by substituted service with the Defendant’s submissions, on this basis I should not refuse to consider the Defendant’s submissions.

• Principles Extracted from Above:
  • Service by email may be authorized after the fact in a motion for sub-service.

• Cash Flow Recoveries Inc. v Crate, 2017 CanLII 9446 (ON SCSM) citing Master Haberman, citing Master Dash in Chambers v. Muslim, 2007 CarswellOnt 6438, concludes that, under the Ontario Rules of Civil Procedure, the onus is on the Plaintiff “to show, on proper evidence, that the method they propose for substituted service will have “some likelihood” or a “reasonable possibility” of bringing the proceeding to the defendant’s attention.” [21]

He goes on to state:

“This test is an important one as it brings an air of reality to the process. Unless the court is satisfied that there is a reasonable possibility that notice of a proceeding will reach a defendant when an order permitting substituted service as sought is signed, the point of the entire exercise is lost. The court should never pay lip service to these Rules and sign these orders, without any real expectation that they will achieve what is expected: to give a defendant notice of a proceeding. There is no basis to claim that our legal system is predicated on notice to defendants if we stray from it regularly and without justification. Ignoring rather than applying the Rules leads to a Kafka novel.” [22]

• Principles Extracted from Above:
  • Unless the court is satisfied that there is a reasonable possibility that notice of a proceeding will reach a defendant when an order permitting substituted service as sought is signed, the point of the entire exercise is lost.

Summary of Principles for Service via Email

• There must be an uncertainty of the defendants' address
• An attempt to effect personal service must have been attempted under Rule 8.02
• Service by email may be authorized after the fact in a motion for sub-service.
• Unless the court is satisfied that there is a reasonable possibility that notice of a proceeding will reach a defendant when an order permitting substituted service as sought is signed, the point of the entire exercise is lost.