In this post, Daniel Rabinovitch explores Ontario’s courts’ increasing acceptance of using text messages as a method of substituted service in legal cases. He discusses Rule 16 of Ontario’s Rules of Civil Procedure, outlining when alternate service methods may be allowed, and how courts are more open to considering text messages as a valid alternative.
If “the medium is the message,” what have Ontario’s courts said by permitting substituted service of claims by text message?
In my view, the message from the court is that, provided you have taken reasonable steps in attempting to serve an individual in person, the courts are increasingly willing to consider alternative means to alert someone who has been named in an action.
In this blog post, I outline Rule 16 of Ontario’s Rules of Civil Procedure and Practice (General Rules For Manner of Service), explain situations when substitute forms of service may be permitted, and suggest the court’s acceptance of text messaging as a valid form of substituted service will help plaintiffs in their quest for justice.
Rule 16: General Rules For Manner of Service
When a person commences a civil action, they must file a Statement of Claim or Plaintiff’s Claim with the court. They must then formally serve the document on to the opposing party/parties in the lawsuit.
It is important for the court to know that such documents have been served properly because the date of service marks the beginning of a specified period granted to the other parties to respond to the lawsuit. Originating processes, like a Statement of Claim, must generally be delivered physically and in person to other parties. This form of service is called personal service and is often done by contracting process servers who are neutral third parties that provide affidavits of service confirming delivery.
Other documents do not generally have to be served in this manner. Rather, they may be alternatively served via the lawyer representing the party, by mailing the document to the last address for service or last known address, by use of an electronic document exchange, or by emailing a copy to the last e-mail address for service or last known email address.
Rules of service vary according to particular circumstances involving the party or parties being served. For example, there are specific requirements for serving businesses, governments, the Crown, boards/commissions, minors, people residing outside of Ontario, or mentally incapable persons, among others.
When Proper Service Is Impractical Or Impossible
In some cases, the court may grant an order for substituted service (service to a party who cannot be served personally or through court-approved alternatives to personal service) or order that service be dispensed with entirely.
Before considering substitute service, the court must be satisfied through proper evidence that a plaintiff has exhausted all reasonable means of locating the party and personally serving the documents to them through usual means.
In K.C.F. v. M.W., 2016 ONCJ 689 (CanLII), Justice Victoria Starr outlined some potential ways of trying to locate a party to give notice. These include:
- E-mail, text, telephone or message (i.e. text or i-message or other messaging via social media), where the party asks for an address for service or gives effective notice by uploading and attaching a copy of the documents to the message, or, sets out details of the application within the body of the message
- A reverse cell or telephone number look-up
- A search of social media sites
- Internet search engines
- Directory searches (online telephone directories, professional organizations, high school alumni associations)
- Inquiring with relatives and/or friends
- Obtaining a credit report from a service such as Equifax
- Public records searches
- Hiring a skip tracer or private investigator
- Obtaining an order for substitute service by advertisement
Moreover, there must be a “reasonable possibility” or “some likelihood” that the documents will come to the attention of the other party through the means of substitute service.
In cases where the party’s home address, place of employment, or another location where they might reasonably be found are known, the plaintiff must show that multiple attempts to serve had been made and the party was either never present or was actively evading service. Other times, a physical point of contact may not be known (or reasonably accessible). In these cases, the plaintiff must demonstrate they have made reasonable efforts to locate the individual (for example, hiring a private investigator).
Depending on specific circumstances, courts have agreed to permit the following forms of substitute service of documents:
- Mailing to the party’s last known address
- Mailing to the party’s workplace
- Leaving them with a close relative or another adult who lives at the party’s home address
- Leaving documents at the party’s place of residence
- Serving the party’s legal counsel
However, in some cases, the plaintiff may not have the requisite information to effect substituted service by the methods above.
Modern Methods Of Substitute Service
The emergence and widespread use of the Internet and wireless cellular telephones provided new ways for people to communicate text with each other virtually anywhere with reception, and Ontario courts have accepted email, social media private messaging, and text messaging to phone numbers as valid forms of substitute service. As Justice S.B. Sherr noted in K.H. v. M.L., 2017 ONCJ 376 (CanLII): “These orders reflect the reality of today’s methods of communication, which are increasingly electronic.”
However, case law on substitute service reinforces the notion that these motions are considered on a case by case basis.
Take, for example, substitute service by text message or short message service (SMS). In the past, I have managed to obtain an order to use a more traditional form of substitute service by showing the court text message trails which revealed a party was attempting to avoid personal service. However, recently I was able to petition the court to permit substitute service by text message itself.
In personal injury cases and small claims cases, there may be times where a party provides minimal identifying information. If you attempt to sue for damages, knowing only the other person’s name and phone number, you may have difficulty serving your claim on them in spite of trying the methods Justice Starr outlined above. Court approved substitute service by text message could allow you to transmit the documents to alert the other party of the proceedings.
What If The Other Party Denies Receiving Notice?
When the party receiving substitute service does not respond to the documentation within the time specified by law, the court may grant the person serving documents a default judgement.
If the other party learns of the judgement, there is a procedure that allows them to make a motion to have the judgement set aside. The other party may state that they were unaware of proceedings because the method of substitute service failed to reach their attention.
Generally, our justice system values a judgement informed by hearing both sides of a matter as opposed to only one side; so, unless there are compelling reasons why the motion to set aside proceedings should not be approved, the other party will likely be permitted to respond to the proceedings.
If a party had been trying to evade service, by asking for the court to set aside a default judgement, they will be clearly acknowledging they are now aware of proceedings against them.
Flexibility From The Court
There’s no denying that personal service is the preferred medium for serving documents – particularly for originating processes. When personal service or alternatives to personal service (outlined in Rule 16.03) are impossible or impractical, court-approved substitute service is an important option to facilitate justice.
Recognition that email, private social media messaging and text messages can be valid forms of substitute service demonstrates the court understands we are living in an increasingly digital world.
By showing flexibility, the court is ensuring that people who are trying to evade service are likely only delaying service. Although it’s been said that justice delayed is justice denied, when it comes to personal service, attempts to evade means a substitute should be tried.
