Substituted Service (SCSM)

RULES OF THE SMALL CLAIMS COURT

8.01 (1) A plaintiff’s claim or defendant’s claim (Form 7A or 10A) shall be served personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03. O. Reg. 258/98, r. 8.01 (1).

Substituted Service

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.

8.10 A person who has been served or who is deemed to have been served with a document in accordance with these rules is nevertheless entitled to show, on a motion to set aside the consequences of default, on a motion for an extension of time or in support of a request for an adjournment, that the document,

(a) did not come to the person’s notice; or

(b) came to the person’s notice only at some time later than when it was served or is deemed to have been served. O. Reg. 461/01, s. 9 (1).

Cash Flow Recoveries Inc. v Crate, 2017 CanLII 9446 (ON SCSM)

In both motions, the Plaintiff seeks an order allowing substituted service of the Claim on the Defendant by private message to the Defendant’s Facebook account.

The Law

In considering this motion, I have reviewed several cases in which the court considered requests for similar orders, and I note that service via email, Facebook or other forms of social media are becoming increasingly common. I take particular note of the decisions rendered in Van Nguyen v. Hart [2015] O.J. No. 1766; Eastview Properties Inc. v. Mohamed [2014] O.J. No. 4220 (OSCJ); and Jewish Family and Child Services of Greater Toronto v. K.B. 2016 ONCJ 259 (CanLII), [2016] O.J. No. 2377 (OCJ). As Justice Sherr notes in the latter decision, many such orders are not reported and are based on affidavit evidence which confirms the facts relating to the defendant’s social media or email account. Citing Burke v. Doe, 2013 BCSC 964, the court notes with respect to such orders:

“They reflect the reality of today’s methods of communication which are increasingly electronic.”[14]

Rule 8.01 of the Small Claims Court Rules provides that a Claim shall be personally served as provided in Rule 8.02 or by an alternative to personal service as provided in Rule 8.03.

In circumstances where impractical to effect service personally or by an alternative to personal service under Rule 8.03, Rule 8.04 allows the court to order substituted service.

In Eastview Properties, Deputy Judge L. E. Joe of this Court granted a motion allowing substituted service by Facebook private message. As DJ Joe notes:

“It is trite to state that a litigant should be personally made aware of claims within a timely manner. Substituted service or validation of service is the exception rather than the rule. The exception applies only where the Plaintiff has shown that reasonable efforts have been made to serve a Defendant personally and that it would be impractical to serve by face-to-face or hand-delivered means. Impractical is not a synonym for inconvenient.” [7]

DJ Joe goes on to note that other courts have granted orders for substituted service using social media sites such as Facebook and agrees that Rule 8.04 permits such orders “if the Plaintiff can establish that the alternative method used would result in the Claim coming to the notice of the Defendant.” [9]

In his review of the evidence before him, DJ Joe noted that:

• The name of the Defendant and the name of the Facebook account located by the Plaintiff were identical

• The photo on the Facebook profile was identified in the affidavit materials as looking like the Defendant

In Van Nguyen, Master Haberman, provides a thorough overview of the law and principles relating to motions seeking extended time to serve and substituted service in a decision which should be required reading for any litigant considering such motions.

As Master Haberman notes, the Rules relating to substituted service are designed to permit a certain degree of discretion and flexibility. However, a Judge is required to consider the rights of all parties, not simply the moving party, in deciding whether or not to grant the relief requested. With respect to substituted service motions he notes that the Plaintiff seeking such an order:

“…must explain why he believes the address he proposed for service is a current and valid one. Our entire legal system is based on the concept of “notice”. We begin each motion with “notice” of motion, which drives this point home. Thus, any address that counsel manages to get his hands on will not necessarily do for service.”[12]

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]

In his decision, Master Haberman notes that Plaintiffs too often rely on addresses for service which they know, or ought to know, are outdated and offer little or no prospect of being the Defendant’s current address.

Although the decision in Jewish Family and Child Services of Greater Toronto v. K.B. is a family court decision, it provides a useful checklist of criteria to be considered by a court in determining whether service via Facebook is a suitable option. In allowing the motion for substituted service by Facebook private message, Justice Sherr considered the following facts in the Applicant’s affidavit to be particularly relevant:

i. The Applicant had located a Facebook account in the same name as the person sought to be served.

ii. The name was not a common name – increasing the likelihood that the Facebook account holder and the person sought to be served were one and the same.

iii. The Facebook profile included photographs which indicated that the account holder and the person to be served were one and the same.

iv. Prior to filing the affidavit, a representative of the Applicant exchanged private messages with the Facebook account holder which indicated that this account belonged to the party sought to be served.

v. The exchange of messages on the Facebook account a short time before the motion date indicated that the Facebook account was still active. [6-13]

In my view, the factors noted by Justice Sherr in granting the motion for substituted service by Facebook private message, while not intended to be exhaustive, are helpful in considering such motions in the Ontario Small Claims Court. These factors, in my view, increase the likelihood of such substituted service being effective in bringing the notice of motion to the attention of the Defendant.

In addition to evidence to support the finding that the Facebook account holder and the person to be served are one and the same, it is equally important to have evidence of some recent activity on the account. Facebook or other social media accounts, or other internet “addresses”, are as easily abandoned as physical addresses, if not more so. Consequently, service of notice to an abandoned Facebook account is no more likely to give actual notice of a claim to a defendant than would mailing the claim to a physical address that is no longer occupied by the Defendant.

I also cite with favour Justice Sherr’s decision to order service via the private message feature on the Facebook account of the person to be served, to avoid unnecessary public exposure or embarrassment. In ordering substituted service in the Jewish Family and Child Services of Greater Toronto v. K.B case, Justice Sherr also ordered that service be made from a different Facebook account than the one previously used by the Applicant to contact the party to be served, recognizing that the party to be served may now have blocked that account.

Analysis and Order

In the case before me, the Plaintiff’s affidavit evidence indicates that:

i. Previous efforts to serve the Claim personally on the Defendant have failed;

ii. The Defendant has changed his physical address at least once since the first attempts at service; and

iii. The Plaintiff has located a Facebook account in the same name as the Defendant.

The affidavit evidence does not support a finding that the Facebook account holder and the Defendant are one and the same. By way of example, there is no evidence that the photos on the Facebook homepage are or appear to be photos of the Defendant.

Furthermore, the affidavit evidence does not support a finding that the Facebook account in question is currently active. Again, by way of example, there is no evidence of recent messages being exchanged or recent photographs or other postings to the Facebook account.

For the foregoing reasons, I am not satisfied that service of the Claim by private message to the Facebook account identified in the motion materials would have a reasonable possibility of bringing the Claim to the attention of the Defendant. The motion is therefore dismissed.