Episode 3: Service of Documents
EPISODE RESOURCES: SMALL CLAIMS COURT GUIDES
Welcome everyone to the Ontario Small Claims Court Podcast. I want to thank you for taking the trouble to download this episode today and I hope that I can help you in some small way.
In this podcast we are going to talk about the different kinds of service of documents.
If you are looking this up in the Rules of the Small Claims Court,
For initiating documents that start a process, like a claim against a party and beginning an enforcement of a judgment, that requires personal service or alternative to personal service.
Let’s talk about personal service. Personal service is hiring someone known as a process server to take your document to the person you have named, and presenting that document “in person.” That person, after service of the document, swears to an Affidavit of Service that they personally served the document named in the affidavit to a specific person at a specific address. You can serve a document personally yourself if you want to take time out of your day to do so, or are willing to go back two or three times, sometimes more to see it through. But don’t do personal service yourself if you think that there may be a possibility that your personal safety may be at risk.
When it comes to serving a Plaintiff’s Claim you have six months from the date that you filed the claim to serve all of the parties you named as defendants to the claim.
Why so long? Let’s face it. Sometimes people go out of their way to avoid service. That’s just a fact of life. Sometimes they even leave the country. I talk about fixing the problems that you might face later.
Okay back to personal service. On an individual to individual basis, personal service is pretty straight forward.
If it is personal service on a municipality, then you can leave a copy of the document with the chair, mayor, warden, or reeve of the municipality, the clerk of the municipality, or the lawyer for the municipality.
If you are going to do personal service on a corporation, then you can leave the document with an officer, director or another person authorized to act on behalf of the corporation or on a person at any place of business of the corporation who appears to be in control or management of the place of business.
If you must have personal service on a Board or Commission, you may leave a copy of the document with a member or officer of the Board or Commission.
If you are personally serving the Federal Government, then you are naming Her Majesty the Queen in Right of Canada. Personal service will have to be on the Deputy Attorney General of Canada in Ottawa, or the Chief Executive Officer of the federal agency that is directly responsible. You can also serve the Director of the Toronto Regional Office of the Department of Justice. But 99% of the time, personal service of documents goes to an agent of the Crown with the authority to accept documents. Contact the agency or the Department of Justice for further information. It’s not as if that they are going anywhere anytime soon.
If you are personally serving the Ontario Government, then you are naming Her Majesty the Queen in Right of Ontario. Personal service will have to be on a solicitor in the Crown Law Office (Civil Law) of the Ministry of the Attorney General. Again, contact the Ministry of the Attorney General for Ontario for further information.
You can still sue a person who is considered to be an Absentee. An Absentee is a person who normally lives and resides in Ontario has disappeared and is now missing. Under the Absentees Act, a committee is formed to manage the estate of the absentee to find and locate the missing person and to determine if they are living or dead. If there is no committee, this function is taken over by the Ontario Public Guardian and Trustee. If you are going to sue someone in Small Claims Court that is an Absentee, you can personally serve it on the committee or on the Ontario Public Guardian and Trustee, whoever has stewardship of the estate.
If you are serving the claim on a minor, meaning a person under 18 years of age, you can personally serve the minor AND the parent or guardian of the minor you are suing.
If there is good reason to believe that the person that you are serving is a mentally incapable person, this will be tricky. It depends upon what measures are in place to govern the affairs of the mentally incapable person.
The first scenario is when the mentally incompetent person is governed by a guardian or person operating under a Power of Attorney for personal care with the authority to act in the Small Claims Court. In this instance, you can personally serve the guardian or attorney. Remember in this scenario an attorney does not mean a lawyer. It means some who has the power of attorney to act for the mentally incompetent person and that can mean almost anyone.
The second scenario is when the mentally incompetent person does not have a guardian or a person operating under a Power of Attorney for personal care with authority to act in a proceeding, but does have a person acting under a power of attorney with authority to act in a proceeding. Okay, it does sound complicated. That’s because there can be more than one kind of attorney. Again attorney does not mean lawyer. The difference here is about what powers the attorney has. In this case, the attorney can make decisions about the court case, but cannot make decisions on the incompetent’s personal care. So, if you are personally serving the mentally incompetent person, then you can serve the incompetent AND the attorney with authority to act in a proceeding.
The third scenario is when the mentally incompetent person does not have an attorney or guardian, and is governed by the Ontario Public Guardian and Trustee. In terms of personal service, you have to serve both the Public Guardian and Trustee AND the mentally incompetent person.
Hopefully, you will never have to serve a mentally incompetent person.
Onwards, to personal service on a partnership. When serving a partnership, you have two choices. You can serve the document on one or more of the partners. The other choice is to serve the document on a person in a place of business of the partnership that appears to be in control or management of the place of business.
If you are serving a Sole Proprietorship, you can leave it with the sole proprietor, or on a person in a place of business of the proprietorship that appears to be in control or management of the place of business.
Now the Rules of the Small Claims Court recognize that personal service does have its problems, and so, the rules allow for ‘alternatives to personal service.’
Only certain documents can be served using an alternative to personal service. In General, they are Plaintiff’s Claims and Defendant’s Claims.
One alternative is on the Defendant’s place of residence. You leave a copy of the document in a sealed envelope addressed to your Defendant and you leave it with anyone who appears to be an adult member of the same household. When that is done, you must serve the same document again to the same person, this time by mailing it or sending it by courier either on the same day or on the following day. So, in this alternative, you are serving two copies of the document two different ways and counts as one service.
An alternative service on the corporation if the head office or principal place of business is in Ontario, or if the company is based outside of Ontario, the attorney for service in Ontario is as follows:
• You either mail or send by courier a copy of the document to the corporation’s address, or the address to the attorney for service in Ontario; AND
• You either mail or send by courier a copy of the document to each director of the corporation as recorded with the Ministry of Government Services, at the director’s address recorded with the ministry.
Again, in this alternative, you are serving at least two copies of the document to both the company itself and the director at their home address or address for service. So what happens if there are five directors in the company? Then, using this alternative to personal service you are serving one copy on the company itself and five more copies, one to each director, at each address that is listed for the director as the address for service.
When you are using either of these two methods of service, especially by mail, service is considered effective depends on whether you serve the document by mail or by courier. If you served the document by mail, the effective date of service is five days after the document was mailed. If it was served by courier, the effective date of service is when the courier verifies that the document was delivered. That’s the date when the defendant signs for the document and appears in your confirmation. Why is this important? It’s because that is the date that the clerk of the court uses to calculate the 20 days for filing the Defence. Therefore, if you are considering a request to the court clerk to note a Defendant in default, and you served the defendant by the alternative to personal service by mail, then you have to add five days to the twenty that’s allowed for the defence to be served and filed.
Another alternative to personal service is by service on a party that is represented by a lawyer or a paralegal. You can serve it on the lawyer or paralegal themselves or their employee. The lawyer, paralegal or employee will have to sign the back of the copy of the document that you will attach to your affidavit of service and date it. That date becomes the effective date of service. The lawyer or paralegal that accepts the document is considered to have the client’s authority to accept service.
Lastly, when you are serving a Plaintiff’s Claim or a Defendant’s Claim, you can serve these documents by registered mail or by courier as an alternative to personal service. The address must be the defendant’s place of residence. Date of effective service is when the defendant signs for the document. A delivery confirmation notice will have to be attached to your affidavit of service and it becomes proof of delivery.
If you are having problems trying to serve someone personally or by alternative to personal service, you will have to bring a motion to the Small Claims Court to ask for permission to use substituted service. You will have to fill out Form 15A, a Notice of Motion and swear to an affidavit that sets out the following:
• The dates, the addresses for service, and the effective dates of such service of all of your attempts to serve the defendant
• That personal service and alternative to personal service is or has become impractical
• That you propose a method of service that you are reasonably confident that the recipient of such notice will bring the next process or claim to their attention to the person that you are trying to serve
Now, this substituted service can happen in a number of ways. You could ask for service by e-mail or Facebook. Another way is to serve a relative of the recipient. Or you could ask the court that you can place the document on their front door. You could also ask the court permission to put an ad in the newspaper.
You can’t ask for substituted service if the only reason is that you don’t know where the defendant lives or carries on business. You have to show that you have done some investigative work to find them. At this point, you are walking into the realm of skip tracers and private investigators. And, of course, spending more money. Given the size of your claim, you have to seriously consider whether that it is better to abandon suing them versus the added costs to locating the person you are trying to serve.
Only in extreme circumstances should you ask for the court to dispense with service of a document. You will have to show that in the interests of justice, it is necessary to dispense with service.
Now, there are other methods of service for documents that are not initiating documents, or documents that are exchanged when claim or defence has already been filed with the court. Service of these documents is less onerous on the person serving them. So, there are three kinds of service that is allowed for these other documents: service by mail, service by courier, and service by fax.
Service by mail can be sent by either regular mail or registered mail to the address of the individual or the individual’s representative that is known to the sender. If the document is being sent by the clerk of the small claims court, the clerk will send it to the address that is on file with the court. Don’t forget that the clerks have to follow the rules for serving documents as well, and they never have to do personal service! If you are serving a document by mail that is not a Plaintiff’s Claim or a Defendant’s Claim, then the date of effective service is five days from the date of mailing, regardless if it was sent by regular mail or by registered mail. So, remember, Plaintiff’s Claims and Defendant’s Claims are the only documents, if sent by registered mail, that the date of delivery as stated in the confirmation notice provided by Canada Post is the effective date of service.
If you are serving a document by courier, then it can be sent to the recipient to the address of the individual or their representative that is on file with the court, OR an address that is known to the sender. Again, if you are serving a document by courier that is not a Plaintiff’s Claim or a Defendant’s Claim, then the date of the effective service is five days from the date of delivery as stated in the confirmation notice provided by the courier.
Finally, if you are serving a document by fax, then it can be sent anywhere that you know the recipient will be at the material time. The date of effective service is on the day of transmission if it is sent between the hours of 8:00 am and 5:00 pm on a day that is not a holiday. If the fax is sent between the hours of 5:00 pm and 8:00 am the following day, then the effective date of service is the following day that is not a holiday. In this method of service, you have to count the pages you are sending. If the document has 16 or more pages, and that includes the cover page, you can only send that fax between 5:00 pm and 8:00 am. If you want to send it during business hours, then you will need to get consent from the other side first before you send the document. Now, I have mentioned the phrase, “...a day that is not a holiday.” What do I mean by holiday?
Holidays have their own rule in the Rules of the Small Claims Court. It is part of the definitions of Rule 1.02. The following days are considered to be holidays whenever you see this word in the Rules of the Small Claims Court:
• Any Saturday or Sunday
• New Years Day
• Family Day
• Good Friday
• Easter Monday
• Victoria Day
• Canada Day
• the summer Civic Holiday
• Labour Day
• Thanksgiving Day
• Remembrance Day
• Christmas Day
• Boxing Day
• Any special day proclaimed by the Governor General of Canada or the Lieutenant Governor of Ontario
The rule on holidays also takes into account if New Years Day, Remembrance Day, and Christmas Day fall on a Friday, Saturday or Sunday. For New Years Day and Remembrance Day, if it falls on a Saturday or Sunday, the following Monday becomes a holiday. If Christmas Day falls on a Saturday or Sunday, the following Monday and Tuesday become holidays. If Christmas Day falls on a Friday, then the following Monday becomes a holiday. In other words, if the courts are closed, then it’s a holiday.
For obvious reasons, when serving documents, addresses become very important. Therefore, accuracy of addresses is important as well. Parties to a claim must notify the court and to all other parties of any changes of address within 7 days after the change takes place. So, if you are a party to a claim, and then you move, you can’t say you didn’t get the document because of your move. Parties and the court are entitled to serve documents to the address filed with the court. It is your responsibility to make sure that your contact information remains accurate through the entire court process.
Now that doesn’t mean that if you failed to receive a document, there is no hope. These defences based on service of documents show up in motions to set aside court orders, such as default judgment, asking the court to extend time, and requests for adjournment. If you are saying that you failed to receive a document, then in your affidavit in support of your motion, you would have to show that the document did not come to your attention or that the document only came to your attention some time after when the document was deemed to be served in the affidavit of service.
As you may guess, each document has access to these rules at different times and in different situations. The last thing that you need to know is that the small claims court will require affidavits of service at certain times before the next step is completed. What do I mean by that? One example is noting a defendant in default for not filing a defence. If you are filing this Request to Clerk (Form 9B), the Clerk will not sign the request without an Affidavit of Service filed with the clerk that shows how and when you served the claim.
Sometimes, there are deadlines for filing the Affidavit of Service if there is an important process that affects a person’s rights, like the enforcement of judgments. The court must be confident that the proper steps have taken place, especially when a party fails to appear for a court date. There is a guide provided by the Ministry of the Attorney General that helps you navigate the service of documents. It is called the “Guide to Serving Documents” and it is available at your local courthouse or online at http://www.attorneygeneral.jus.gov.on.ca/english/courts/guides/. Towards the end of that guide is a handy grid that sets out the documents being served, who serves them, how that document can be served, and the time limits for service of that particular document.
I am going to list a few here that are the more common ones that you might be serving onto parties, so this will not be a complete list. You will have to refer to the Rules of the Small Claims Court, look at the guide, or speak to a lawyer or paralegal for guidance for your particular situation.
For a Plaintiff’s Claim or a Defendant’s Claim, you can serve it by personal service, by alternative to personal service, or by substituted service, but only by permission of the court. You have six months to serve those claims.
A Notice of Garnishment or a Notice of Renewal of Garnishment: you, the judgment creditor, can serve it by personal service, alternative to personal service, by mail, or by courier on the debtor or the garnishee. A Notice of Garnishment or a Notice of Renewal of Garnishment must be served with an Affidavit for Enforcement Request when serving the Debtor. A Notice of Garnishment or a Notice of Renewal of Garnishment must be served on the Garnishee with a Garnishee Statement. You have to serve the debtor within five days of service on the garnishee.
For serving a Notice of Examination: you, the judgment creditor, can serve the Notice of Examination on the judgment debtor either by personal service or by alternative to personal service. The Notice of Examination must be served with a blank Financial Information Form. You have to serve these documents at least thirty days before the date set for the Examination Hearing and you have to file an Affidavit of Service with the court at least three days before that court date.
For serving a Notice of Motion, you, the party filing the motion, can serve the Motion notice and materials to all other parties who has filed a claim and on any defendants who has not been noted default if the motion comes before a final judgment has been rendered. If the motion is made after judgment, then you, the party filing the motion, will have to serve the motion notice and materials on all parties, including the parties noted in default. Service of the motion can be done by personal service, alternative to personal service, mail, courier, or by fax. Timing for serving a Notice of Motion again depends upon whether there has been a final judgment in the case. Before judgment, motion notices must be served at least seven days before the hearing. After judgment, documents must be filed with proof of service at least three days before the hearing.
That wraps up this podcast. Your comments and questions are always invited. There are guides written by the Ministry of the Attorney General that are available at most Small Claims Court locations or on line at www.attorneygeneral.jus.gov.on.ca/english/courts/guides. There you will find the Guide to Serving Documents.
Thank you for listening and I hope you join me again soon.