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Small Claims Court (Ontario) Law
(01 October 2011)

Chapter 6 - Service of Documents

  1. Overview
  2. Service Methods
    (a) Personal Service
    (b) Alternative to Personal Service
    (c) Mail Service
    (d) Courier Service
    (e) Fax Service
    (f) Substituted Service
  3. Service Method Required by Type of Document
  4. Provincial Corporate and Business Names Searches
  5. Proof of Service and Filing
  6. Document Failing to Come to Notice of Party Served
  7. Validating Service
  8. Duty to Advise of Change of Address
________________________________________

1. Overview

These rules govern the manner and timing of delivery of documents to parties in a proceeding, otherwise known as "service". In most cases "service" of documents must be accompanied by the preparation and swearing of an "affidavit of service" which must be filed with the court before the court takes notice that the document has been served. Anyone involved in a Small Claims Court case will need to be quite familiar with "Affidavits of Service" as they are used very often.

Form 8A: Affidavit of Service

Key documents - particularly Claims - have traditionally required a more formal method of service (such as "personal service" or registered mail), however those procedures are relaxed in the present Small Claims Court Rules, allowing for regular mail service of Claims on individuals in most circumstances once one attempt at personal service is unsuccessful. Note however that as of 01 January 2010 the Rule which allowed mail or courier service effective 20 days after (regular) mailing was repealed [Reg 393/09], and replaced with courier and registered mail service effective on the signature-verified date of receipt [Reg 393/09].

Other documents, including those being served by the court clerk to the parties, may be served by more usual methods used in business, such as fax or mail. Efforts over recent years by the court to establish consistent electronic service (ie. e-mail)have met with limited success, and were eliminated from the court rules by amendments effective 01 July 2006.

When reading the Small Claims Court Rules regarding service, be aware that the term "person" includes a corporation, while the term "individual" refers to a natural person.

Detailed records should be kept of all service attempts re date, time, location and events as they will be required for the affidavit of service, and may be useful in the event that a motion for substituted service (below) is required.

In this chapter I first describe the different methods of service, and then provide a chart to identify which documents require which method of service. Be sure to review the methods carefully, as they can vary by the type of legal entity being served. Remember that in most cases service must be proven to the court's satisfaction by affidavit of service - failing which the court will probably refuse to acknowledge that service has occured.


2. Service Methods

(a) Personal Service

Practically, most documents requiring "personal service" may also be served by much more convenient "alternative(s) to personal service" which is discussed in sub-section (b)and section 3.

But when it is required or convenient, note that "personal service" varies with the type of legal entity upon whom it is made (for a more detailed discussion of the various types of legal entities, see Ch.4 "Parties"). Personal service on a real person is simple enough, but service on corporations and other legal entities is not as clear so the law identifies which individuals involved with the legal entity must be served personally on behalf of the entity [R8.02].

In all cases, "leaving" the document with someone does not mean leaving it for them to find later - it must be given to them in person. If they resist taking the document into their hands, it may be placed on a table or the floor in front of them as long as they are plainly aware that it is for them.

In all cases, record the time, place, circumstances and names and position of any people involved for later inclusion in an affidavit of service. If names are not given, describe their physicial appearance, gender and the behaviour which leads you to believe they might be in authority.

Note that personal service is may be performed by people other than the party themself. Friends, legal representatives and their staff can do it and swear the affidavit of service for filing with the court. As well, there are commerical "process servers" that will do it for a fee. Look in the internet under that heading for your community.

Where efforts to perform "personal service" are impeded or difficult, an order for "substituted service" may be sought (see subsection (e) below).

i. Individual Person

Note that there are special rules for individuals who are "minors", "absentees" or "mentally incapable" (who they are is defined in the Ch.4 "Parties", and their service requirements are discussed below).

Personal service on an individual person is made "by leaving a copy of the document with him or her".

Service on an individual person is resisted or avoided more often than with corporate or business parties, but usually it is surprisingly easy. Use your judgment as to whether it is safe, and consider the use of a professional process server or other person.

Also, if it is available for the particular document you are serving, review the "alternative to personal service" provisions for service at a person's residence [sub-section (b) below].

ii. Municipality

Personal service on a municipality may be performed "by leaving a copy of the document with the chair, mayor, warden or reeve of the municipality, with the clerk or deputy clerk of the municipality or with a lawyer for the municipality".

Usually attendence at the clerk's office would be most convenience. A deputy clerk is probably the most available - do not serve on a secretary. Staff at the clerk's office are not likely to obstruct someone attempting legal service upon the municipality.

iii. Corporation (Business, Non-profit or Co-operative)

Personal service on a corporation is done by "leaving a copy of the document with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be in control or management of the place of business".

While it is not necessary to serve corporations at their corporate head office (note "any place of business"), this can be done. See section 4 on Corporate Information searches, below. Also see the "alternative to personal service" provisions regarding corporations, discussed in sub-section (b), below.

Small and "closely-held" corporations are more likely to be uncooperative regarding service than larger ones. Happily, service on "a person ... in control or management of the place of business" makes it easier. You might attend and ask "I'd like to speak to the manager?", or suchlike. Sometimes door signs or lapel labels give this information, or you may know who is "in charge" from prior knowledge.

Failing that, anyone who tells you to leave is arguably by that act apparently "in charge", and service to them will likely do.

Personal service may be made on a non-Ontario corporation at an Ontario place of business - if any, or at "its address required to be maintained under the laws of the jurisdiction of formation or its principal office address." [Business Names Act, s.2.1(5)]. Remember that you do not HAVE to serve documents in Ontario, though it does tend to make things simpler and cheaper if you can (see Ch.3: "Jurisdiction: Venue").

iv. Board or Commissions

"Boards and commissions" are a broad range of quasi-governmental agencies - not private corporations, and they are distinct from government departments or Ministries. They are usually established by statute or under statutory authority, and they may have other similar names such as "agency" or "tribunal".

Personal service on a Ontario Board or Commission is made "by leaving a copy of the document with a member or officer of the board or commission" [R8.02(d)]. Service of an "originating process" (ie. Claim) on a federal (Canadian) Board or Commission is made on "the chief executive officer" [CL&PA (Cda), s.23(2)].

Practically, service on a board or commission will not likely be resisted and is received at the legal department. I suggest simply calling the agency's legal department and asking them who will accept service, and making arrangements to do so. Be sure however that the details of the conversation are reflected in your affidavit of service.

v. Person Outside Ontario Carrying on Business in Ontario

Personal service on a "person outside Ontario carrying on business in Ontario" is by "leaving a copy of the document with anyone carrying on business in Ontario for the person".

This is very broad and can encompass most if not all employees. As a practical matter though try to serve the person with the highest status you can, as they are more likely to appreciate what they have been given.

As the Ontario Legislation Act, 2006 includes "corporations" within the definition of "person" [L/A, 2006: s.87], this provision likely encompasses non-Ontario corporations carrying on business in Ontario. In any event this service requirement (a business location) is similar to that for corporations (above).

vi. "Crown in Right of Canada"

If you are considering suing the Crown, be aware that it can be a complex process involving shortened limitation periods and very specific procedural requirements which are not covered in this program. Failure to meet the requirements may be fatal to your case. This program does not provide full information on these requirements.

The "Crown in Right of Canada" means Canada, or the federal government. When named in a legal document the proper style of cause (title) is "Her Majesty the Queen in right of Canada" (see the Ch.8 "Pleadings").

Personal service of the "originating process" in a proceeding (ie. the Claim) is "on the Deputy Attorney General of Canada" [s.23(2) Crown Liability and Proceedings Act (Canada)]. Practically service will be accepted at:
Attorney-General of Canada
Suite 3400
Exchange Tower
First Canadian Place
Toronto, Ontario
M5X 1K6

- or -

Justice Building
239 Wellington St
Ottawa, Ontario
K1A 0H8
After the Claim is properly served the matter will almost always be assigned to a staff lawyer, who you can serve all other documents upon.

vii. "Crown in Right of Ontario"

If you are considering suing the Crown, be aware that it can be a complex process involving shortened limitation periods and very specific procedural requirements which are not covered in this program. Failure to meet the requirements may be fatal to your case. This program does not provide full information on these requirements.

The "Crown in Right of Ontario" means Ontario, or the provincial government. When named in a legal document the proper style of cause (title) is "Her Majesty the Queen in right of Ontario" [Proceedings Against the Crown Act, s.9].

The personal service method is set out by provincial statute [PACA s.10]: "by leaving a copy of the document with a solicitor in the Crown Law Office (Civil Law) of the Ministry of the Attorney General."

In Toronto, service may be made at the head office of the A-G:
Attorney-General of Ontario
Civil Law Branch
8th Floor
720 Bay St
Toronto, Ontario
M5G 2K1
ix. Absentees

An "absentee" is what is commonly known as a "missing person" - that is: a person who, having had his or her usual place of residence or domicile in Ontario, has disappeared, whose whereabouts is unknown and as to whom there is no knowledge as to whether he or she is alive or dead." [Absentees Act, s.1]. Absentees are discussed in more detail in Ch.4: "Parties".

On application to the Superior Court by an interested party, that court may declare a person to be an absentee and appoint a "committee" to look after the absentee's property [Absentees Act, s.2,4].

Personal service on absentees is achieved "by leaving a copy of the document with the absentee's committee, if one has been appointed or, if not, with the Public Guardian and Trustee" [R8.02(h)].

x. Minors

Minors are those who have not yet reached their 18th birthday. For a fuller explanation of the legal status of minors see the Ch.4: "Parties". Minors are personally served by "by leaving a copy of the document with the minor and, if the minor resides with a parent or other person having his or her care or lawful custody, by leaving another copy of the document with the parent or other person".

Thus, if the minor lives outside the parental or custodial residence, or is of no fixed address, personal service alone is adequate. Otherwise bring a second copy for the parent or custodian (a good practice to follow even with other methods of service on an unrepresented minor).

Shortly after a minor has been properly sued it is likely that you will then be dealing with a "litigation guardian" (see the chapter: "Parties"). The court should be made aware that the defendant is a minor by this being stated in the style of cause (see Ch.4: "Pleadings") and in the text of the Claim.

xi. Mentally Incapable Person

For the definition of "mentally incapable" see the Ch.4: "Parties".

A significant problem regarding service on a mentally-incapable person is that the plaintiff is not likely to be aware of any previous legal determination of their status, or of the appointment of legal representative for them. The plaintiff may be left in the position of having to judge the mental condition of an opposing party, likely without their cooperation, and without the medical qualifications required to make the determination.

The Rules discussed here anticipate this to some extent by providing successive alternative methods of service. First, inquire as best you can from anyone having knowledge of the party's situation if there is an Attorney (under a Power of Attorney) or a Guardian. Failing that proceed to the next step.

The following may be personally served on their behalf, in order of availability:
  • if there is a guardian or an attorney acting under a validated power of attorney for personal care with authority to act in the proceeding, by leaving a copy of the document with the guardian or attorney,

  • if there is no guardian or attorney acting under a validated power of attorney for personal care with authority to act in the proceeding but there is an attorney under a power of attorney with authority to act in the proceeding, by leaving a copy of the document with the attorney and leaving an additional copy with the person,

  • if there is neither a guardian nor an attorney with authority to act in the proceeding, by leaving a copy of the document bearing the person's name and address with the Public Guardian and Trustee and leaving an additional copy with the person.
Note that the term "attorney" used here does not mean their lawyer. "Attorney" here is the person appointed as such under a written "Power of Attorney" document.

Dealing with a mentally-impaired party can be difficult, but the court will expect you to be patient and sensitive to their disability - even if they are aggressive and obnoxious. If you are seriously concerned about security, seek professional assistance with service from a process server (advising them of your concerns beforehand) or make a motion to the court for substituted service [sub-section (e) below].

x. Partnership

Personal service on a partnership (and limited partnership and limited liability partnerships) may be achieved "by leaving a copy of the document with any one or more of the partners or with a person at the principal place of business of the partnership who appears to be in control or management of the place of business".

This is similar to personal service on a corporation - see that discussion above.

All non-Ontario limited partnerships are required to appoint an Ontario resident as their "attorney" (under a Power of Attorney) to act as their representative in Ontario [LPA s.25(4)], unless they are formed in another Canadian jurisdiction and have an office or other place of business in Ontario [LPA s.25(6.2)]). Service on this attorney would likely count as service on an "Ontario place of business".

Service may also be made on a non-Ontario limited liability partnership at an Ontario place of business - if any, or at "its address required to be maintained under the laws of the jurisdiction of formation or its principal office address." [Partnership Act, s.44.4(5)].

xi. Sole Proprietorship

Personal service on a sole proprietor (person doing business using their personal name or a business name - not in a partnership or incorporated) may be achieved "by leaving a copy of the document with the sole proprietor or with a person at the principal place of business of the sole proprietorship who appears to be in control or management of the place of business."

This is similar to personal service on a corporation - see that discussion above.

(b) Alternative to Personal Service

Most documents requiring personal service may be also be served by an "alternative to personal service" (see section 3 below for each type of document). The most important of these is service of the Claim on individuals, which commences the proceeding and may be made by courier or registered mail under R8.03(7,8) [be careful to distinguish this 'alternative to personal service' mail service under R8.03, from 'regular' mail service under R8.07].

Summons to Witnesses and Notices of Contempt Hearings are the only documents that must be served personally.

The methods of "alternative to personal service" are as follows [R8.03]:

i. At Place of Residence

Once an unsuccessful attempt at personal service has been made at a individual's residence, alternative service may be made by [R8.03(2)]:
  • leaving a copy in a sealed envelope addressed to the individual at the place of residence with anyone who appears to be an adult member of the same household; and

  • on the same day or the following day, mailing or sending by courier another copy of the document to the individual at their place of residence.
Such service is effective on the fifth day after the mailing, or the fifth day after verification by the courier that it was delivered (get this in writing from the courier, usually on a signed waybill) [R8.03(4)].

ii. On a Corporation

If no head office, principal place of business or "attorney for service" can be located at the last address listed as shown in a Corporate Information search (see section 4 below), "alternative to personal service" may used. This is done by mailing or couriering the document to [R8.03(3)]:
  • the last corporate (or "attorney") address shown in such a search; and to

  • each director of the corporation at their address is revealed by a Corporate Information search.
Such service is effective five days after the mailing, or five days after verification by the courier that the documents were delivered, as the case may be [R8.03(4)].

iii. Lawyer
Note: this discussion refers to the serving a party through their lawyer, not suing the lawyer. Lawyers as parties should be treated as "sole proprietors" (ie. sole practitioners) or partners.
If a party is represented by a lawyer, alternative to personal service may be made by "leaving a copy of the document with the lawyer or an employee in the lawyer's office but service under this subrule is effective only if the lawyer or employee endorses on the document or a copy of it an acceptance of service and the date of the acceptance." [R8.03(5)]

Most lawyer's offices have rubber stamp endorsements which require their signature and dating. Take two copies of the document with you, and retain the endorsed copy for filing with the court. Some local courts may accept this endorsed document as proof of service, but others may require an affidavit of service, attaching the endorsed document as an exhibit [R8.06]. Inquire of the court clerk as to local practice.

A lawyer who accepts service by endorsement is by that act representing to the court that they have authority from the party to accept service. [R8.03(6)]

iv. Service of Claim by Mail to Residence of Individual

Alternative to personal service of a Claim on an individual (ie. a natural person) may be made by registered mail or courier to a party's residence, as long as such receipt is verified by the signature of the recipient or someone who appears to be a member of their household [R8.03(7)]. Such service is effective on the date of the verifying signature as shown on the verification document provided by the courier or the post office, as the case may be [R8.03(8)].
Note: The old version of this Rule allowed service of a Claim by regular mail or courier on the defendant's last known address, with a 20 day delay in it's being effective. That Rule was repealed 01 January 2010.
(c) Mail Service
Note:
While mail service is also sometimes allowed as a form of "Alternative to Personal Service" (section 2(b)(iv) above), this section discusses it as a separate and free-standing form of service. It is important to distinguish these two types of service.
Where the Rules allow, mail service may be performed by either regular or registered mail [R8.07].

Service by a party on another party is to the last address known to that party. As a practical matter where a party believes that another party has a different address from that on file with the court, both addresses should be served - but otherwise use the one on file with the court. One affidavit of service listing all service efforts can be used.

Mail service is effective five days after mailing. An exception to this rule is where the document is a Claim being served on an individual at their residence by registered mail as an 'alternative to personal service' - there the service is effective immediately [R8.07(3)] (this is discussed in section 2(b)(iv) above).

Note that service of some documents, such the Defence, is done by the court clerk by regular mail to the address on file for the party or their lawyer or agent. Note that there is an express duty on all parties to promptly advise the court and other parties of any changes of address (see s.9, below).

(d) Courier Service

Courier service may be effected by couriering a document with a "commercial courier" to "the last address of the person or of the person's lawyer or agent that is on file with the court or known to the sender" [R8.07.1(1)].

Courier service is "deemed to be effective on the fifth day following the date on which the courier verifies to the sender that the document was delivered" [R8.07.1(2)]. For this reason arrangements should be made with the courier for some written form of confirmation to be returned to the sender.
Note:
The wording of R8.07.1(2) is odd. Literally it counts the five days from when the courier "verifies" the delivery to the sender (ie. when the sender is TOLD), not five days from the date of delivery - which seems more sensible. It remains to be seen how this provision will be interpreted.
An exception to this rule is where the document is a Claim being served on an individual at their residence by verified courier as an 'alternative to personal service' - there the service is effective immediately on the date of verification [R8.03(7)(8)] [discussed in section 2(b)(iv) above] [R8.07.1(3)].

(e) Fax Service

Service by fax (fascimile telephone transmission), where available under the Rules, is effective:
  • on the day of transmission, if transmission takes place before 5 p.m. on a day that is not a holiday;

  • on the next day that is not a holiday, in any other case [R8.08].
Unless the party consents in advance, large documents (16 or more pages including cover page) may only be served outside of business hours (between 5pm and 8am the next day). Anything faxed after 5pm will be deemed to have been faxed the next day that is not a holiday.

(f) Substituted Service

When prompt personal service or alternative to personal service are "impractical", a party may make a motion to the court for "substituted service", which will take whatever form the court determines. [R8.04]

This is a catch-all provision to ensure that legal service can be made when unusual circumstances exist (such as security concerns) or the parties to be served are resisting attempts at service.

The affidavit on such a motion should explain in detail the unsuccessful efforts made. Such a motion should suggest a workable and reasonable service alternative.

Chapter Continues Here
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