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.