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3. Service Method Required by Type of Document

___________________________________________________________
CLAIM (Original and Defendant's Claim)
(done by party)

. Personal Service [R8.01(1)]
. Alternative to personal service at residence under R8.03(2)
. Alternative to personal service by mail under R8.03(7) NOT under R8.07)
  • these rules apply to Defendant's Claims as well [R10.02]

  • service of a original plaintiff's Claim (or a Defendant's Claim) must be done or arranged by the plaintiff, it is NOT done by the court.

  • must be done within 6 months of issuance of the claim, subject to extension by the court at any time [R8.01(2)].

  • note that when suing a partnership or a sole proprietorship, you may also want to serve a "Notice to Alleged Partner" or "Notice to Alleged Sole Proprietor" at the same time (see Ch.4 "Parties") [R5.03(1)].

  • Mail service under R8.03(7) is only effective 20 days after mailing. As well, the affidavit of service must contain some very specific information [see "Alternatives to Personal Service: Mail" section 2(b)(iv) above].
(see Ch.8: "Pleadings: Claims")
____________________________________________________________
DEFENCE
(done by party)

. mail
. courier
. fax
. personal service
. alternative to personal service [R8.01(14)]
  • applies to Defences to Defendant's Claims as well [R10.03]
(see Ch.8: "Pleadings: Defences")
____________________________________________________________
AMENDED CLAIMS AND DEFENCES
(done by amending party)

. mail
. courier
. fax
. personal service
. alternative to personal service [R12.01(2)][R8.01(14)]
  • This includes Amendments to "Defendant's Claims" and to "Defences to Defendant's Claims"

  • Amended pleadings (ie. Claim or Defence) should be served on all parties in default as well.

  • Service should be made at least 30 days before originally scheduled trial, unless the court orders otherwise.

  • Where an amendment to a claim made at trial adds a party to the proceeding, the court may dispense with service [presumably only if the opposing party is present and prepared to proceed: R12.01(4)]
(see Ch.8: "Pleadings: Amendments to Pleadings")
___________________________________________________________
DEFAULT JUDGMENT
(done by court clerk)

. mail
. fax [R8.01(4)]
  • served on all parties named in the claim (ie. any co-plaintiffs and ALL defendants, even if noted in default)
(see Ch.9: "Default by Defendant: Default Judgment")
____________________________________________________________
ASSESSMENT ORDER
(done by court clerk)

. mail [R8.01(5)][R11.03(2)]
  • will be served to the party making an assessment motion in writing by the court clerk IF the party provides a stamped, self-addressed envelope with the notice of motion
(see Ch.9: "Default by Defendant: Damage Assessments")
____________________________________________________________
SETTLEMENT CONFERENCE ORDER
(done by court clerk)

. mail
. fax [R8.01(6)]
  • will be served on all parties that did NOT attend the settlement conference (those that did attend may want to request copies from the clerk, to be clear as to the terms of any such orders)
(see Ch.11: "Pre-Trial Proceedings: Settlement Conferences")
____________________________________________________________
SUMMONS TO WITNESS
(done by party calling witness)

. Personal Service [R8.01(7)] [R18.03(3)(4)]
  • to be served at least 10 days before the trial date; summons must be accompanied by required witness attendence fees

  • must also be served on all parties at same time [R18.03(5)]
(see Ch.15: "Evidence: Summons to Witness")
____________________________________________________________
NOTICE OF GARNISHMENT
(done by creditor)

. mail
. courier
. personal service
. alternative to personal service [R8.01(8)(9)] [R20.08(6)]
  • on garnishee, WITH a garnishee's statement, AND

  • on debtor, WITH sworn Affidavit of Enforcement Request, within five days after service on the garnishee
(see Ch.16: "Collection: Garnishment")
____________________________________________________________
NOTICE OF GARNISHMENT HEARING
(done by party requesting hearing)

. mail
. courier
. personal service
. alternative to personal service [R8.01(9)] [R20.08(15.1)]
  • to the creditor, debtor, garnishee, co-owner of debt (if any), and "any interested party"

  • hearing date to be obtained from court clerk
(see Ch.16: "Collection: Garnishment")
____________________________________________________________
NOTICE OF EXAMINATION
(done by creditor)

. personal service
. alternative to personal service
[R8.01(10)(11)(12)] [R20.10(3)]
  • to the debtor or the person to be examined;

  • must be served 30 days or more before date of examination;

  • must be filed, with proof of service, at least three days before the examination;

  • if service is on debtor who is an individual (ie. not a corporation or partnership) service must be accompanied by a blank Financial Information Form
(see Ch.16: "Collection: Debtor Examination").
____________________________________________________________
NOTICE OF CONTEMPT HEARING
(done by creditor)

. Personal service [R8.01(13)] [R20.11(3)]
  • on debtor or "person to be examined" after failed examination
(see Ch.16: "Collection: Contempt Proceedings")
____________________________________________________________
NOTICE OF TRIAL
(done by court clerk)

. mail
. fax [R16.01(1.1)]

(see Ch.14: "Trial: Notice of Trial")
____________________________________________________________
NOTICE OF TERMS OF PAYMENT HEARING
(done by court clerk)

. mail
. fax [R9.03(4.1)]

(see Ch.8: "Pleadings: Defence: Admission of Liability and Proposal for Payment")
____________________________________________________________
NOTICE OF TERMINATION OF CONSOLIDATION ORDER
(done by court clerk)

. mail
. fax [R20.09(11.1)]

(see Ch.16: "Collection: Consolidation Orders")
____________________________________________________________
OTHER DOCUMENTS

. mail
. fax
. courier
. personal service
. alternative to personal service [R8.01(14)]
____________________________________________________________


4. Provincial Corporate and Business Names Searches

Ch.4: "Parties" has an extended discussion about practically determining who you want to sue and how to properly name them in a Claim.

To aid in this process, and in determining where to serve a party with documents, Ontario's Ministry of Government Services maintains Registries of business names, partnerships and Corporation Information ("ONBIS": "Ontario Business Information System"). These Registries, which are publically accessible (for a fee), can be very useful in determining who exactly to sue, what their legal and business names are, and where they can be served (eg. a "head office" or "place of business").

More information on what types of searches may be performed may be found at the Ministry's website:

Business Name and Corporate Information Searches


5. Proof of Service and Filing

Once service of a document has been performed, proof of service must be filed (filing is usually done by mail) with the court so that it can take formal notice of the document.

Proof of service of a document performed by or on behalf of a party is normally proven by filing an "affidavit of service" [R8.06]. An affidavit is a sworn statement, "commissioned" by a "commissioner of oaths" and signed by the person attesting to the truth of the statement in the presence of the commissioner. All lawyers and most court staff are commissioners of oaths, as are municipal clerks and many secretaries of law firms.

The affidavit should be accompanied by a copy of the document, unless it is a document that was issued by the court or otherwise already in the court record. Affidavits of service identify the document served by nature and date of document, and - particularly in cases of personal service - they also set out the details of service re date performed, how performed and any further details necessary to satisfy the court clerk that the document was properly served. The need to specify details of service in the affidavit of service is why detailed notes of service attempts should be kept.

Form 8A: Affidavit of Service

Note that even where a lawyer has endorsed service of the document as per R8.03(5), an affidavit of service may still be required for filing [R8.06]. Inquire as to local practice with the court clerk.


6. Document Failing to Come to Notice of Party Served

The whole purpose of service is to bring the contents of the document to the attention or "notice" of the party being served. Satisfaction of the formal service requirements results in a presumption that service has been effected at the time determined by the rules.

However on some occasions the "served" party may still argue that the document only came to their notice late - or not at all. For instance, this can be done when making motions to [R8.10]:
  • set aside the consequences of default (see Ch.9: "Default Proceedings")

  • extend time (for serving of filing a document)[R3.02(2)] (see Ch.7: "Time Limits");

  • obtain an adjournment (see Ch.14, s.4(d) "Trial: Trial Issues: Adjournments").
This is not an oppourtunity to excuse delay or bad faith behaviour by a party. If possible (sometimes it's not), there should be some positive statement of evidence presented to explain why the the document did not come to the attention of the person "served". An example might be - in the case of alternative service at a person's residence - of the failure of the adult to whom the document was given to in turn give the document to the party. Sometimes addresses change (though see s.9 below). Sometimes mail goes missing. Other examples, dependent on the circumstances, can be imagined.

Obviously, the stronger the evidence explaining the failure of notice the stronger the case for relief. On such a motion, affidavits explaining the lateness should be sought from any other persons involved.

On such motions courts are particularly concerned to see that the party seeking to correct the situation moved quickly to do so. Such motions should be brought promptly.

Before making a motion though the party should try to obtain the written consent of the other partie/s to extend time or lift the default. Note that time limits under the Rules for serving and filing documents may be extended [R3.02(2)] by the filing of written consent/s from the parties to do so.

If a Notice of Trial is not received in time to prepare for it, note that an adjournment of trial date cannot automatically be obtained even with consent from the other parties - although such consent would usually greatly aid such a request. The earlier (ie. well before trial) such consent is filed with the court the more likely it is that the matter will be dealt with administratively within the court and not require a court attendence. Late requests for trial adjournments may be refused by the court even with consent (see now the new [01 July 2006] procedures for adjournments: Ch.14, s.4(d) "Trial: Trial Issues: Adjournments").

In any case, seeking such written consent should be attempted by letter before (or simultaneously with) the bringing of a motion even if it is not likely forthcoming, as courts may wish to punish with a cost award those who oppose reasonable motions[R15.02(1)]. You can bring your request letter to court to give the judge AFTER the motion is argued (this is court protocol, so as to avoid prejudicing the judge's mind before they make their decision on the main motion issue).


7. Validating Service

As stated, the purpose of service is to bring the contents of the document to the attention or "notice" of the party being served in a timely fashion. Of course this can happen even when notice is technically faulty - or not made at all. In such cases the courts are properly concerned with whether full and timely notice of the document came to a party, not with the technicalities.

Where convinced that actual timely notice of the document came to a party's attention, the court can dispense with any further service efforts and by order "validate" the practical "service" that was made. An example of this might be where a document went astray in the mail but the other party had attended the court office and obtained a copy themselves.

The Superior Court's "Rules of Civil Procedure" also allow "validation" of service where a party is attempting to evade service. It is possible that a Small Claims judge might make such an order under their general authority under R2.02 - though they might also just hold previous service efforts as legally adequate as "substituted service": See section 2(f) above.


8. Duty to Advise of Change of Address

A new rule, effective 01 July 2006 (Reg 78/06) now requires that any party whose address for service has changed to provide notice of the change to all the other parties and the court within seven days after the change [R8.09]. This would however exclude parties noted in default, who are not entitled to service of any further documents in the proceeding [R11.05(2)].


9. Electronic Issuance and Filing of Documents

Subsequent to amendments to the Rules in force 01 July 2014, a limited electronic issuance and filing project commenced 11 August 2014 in the Brampton, Oshawa, Ottawa and Richmond Hill courts. In those courts and others that may be added from time to time (inquire of your local court), parties using Ministry-approved online software [R1.05.1] may have specified documents electronically issued by the court, and may be allowed to electronically file specified documents. Where such electronic issuance and/or filing is available with respect to specific court documents this fact, and necessary details of procedures required, are noted in this Isthatlegal.ca Small Claims Court (Ontario) Legal Guide in the chapters and sections where those procedures are covered.

General aspects of the pilot project include [R1.05.1]:
  • electronic signatures of documents,

  • that filing or issuance after regular business hours is deemed to have occured the next business day,

  • originals of filed "affidavit(s) or other signed or certified document(s)" may be disposed of by the party filing them after three years unless the clerk or the Rules requires them to file them in paper with the court beforehand.
This is the Ministry's User Guide on this pilot project:

Small Claims Court E-filing Service User Guide


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