Can a Legal Document Be Ignored If the Rules of Service Were Broken?

The Rules of Service For Legal Documents Are In Place to Help Ensure That the Legal Document Genuinely Comes to the Attention of the Intended Person. Accordingly, Where a Legal Document Does Come to Genuine Attention, Even In a Manner Contrary to the Rules of Service, Service Is, Generally, Deemed Complete.

Understanding That Formal Rules For Serving Documents May Be Made Moot When a Document Is Received By Other Means

Lawsuit Document Legal venues, whether as courts and tribunals, have explicit rules that prescribe the manner in which a document should be served upon an intended recipient.  Depending on the legal venue and type of document, rules of service often vary from personal service to service by mail.

The Law

Like most legal venues, the Small Claims Court has specific rules prescribing the manner in which documents relating to a Small Claims Court case should be served upon the intended recipient.  These rules are found within Rule 8 of the Rules of the Small Claims Court which state:

RULE 8 SERVICE

Service of Particular Documents Plaintiff’s or Defendant’s Claim 

8.01 (1) A plaintiff’s claim or defendant’s claim (Form 7A or 10A) shall be served personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03.

Time for Service of Claim

(2) A claim shall be served within six months after the date it is issued, but the court may extend the time for service, before or after the six months has elapsed.

Default Judgment

(4) A default judgment (Form 11B) shall be served by the clerk on all parties named in the claim by mail or by email.

Assessment Order

(5) An order made on a motion in writing for an assessment of damages under subrule 11.03 (2) shall be served by the clerk on the plaintiff by mail or by email.

(5.1) A plaintiff who wishes for service under subrule (5) by mail shall provide a stamped, self-addressed envelope with the notice of motion and supporting affidavit.

Settlement Conference Order

(6) An order made at a settlement conference shall be served by the clerk by mail or by email, on all parties that did not attend the settlement conference.

Summons to Witness

(7) A summons to witness (Form 18A) shall be served personally by the party who requires the presence of the witness, or by the party’s representative, at least 10 days before the trial date; at the time of service, attendance money calculated in accordance with the regulations made under the Administration of Justice Act shall be paid or tendered to the witness.

Notice of Garnishment

(8) A notice of garnishment (Form 20E) shall be served by the creditor,

(a) together with a sworn affidavit for enforcement request (Form 20P), on the debtor, by mail, by courier, personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03; and

(b) together with a garnishee’s statement (Form 20F), on the garnishee, by mail, by courier, personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03.

Notice of Garnishment Hearing

(9) A notice of garnishment hearing (Form 20Q) shall be served by the person requesting the hearing on the creditor, debtor, garnishee and co-owner of the debt, if any, and any other interested persons by mail, by courier, personally as provided in rule 8.02 or by an alternative to personal services as provided in rule 8.03.

Notice of Examination

(10) A notice of examination (Form 20H) shall be served by the creditor on the debtor or person to be examined personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03.

Financial Statement

(11) If the person to be examined is the debtor and the debtor is an individual, the creditor shall serve the notice of examination on the debtor together with a blank financial information form (Form 20I).

(12) The notice of examination,

(a) shall be served, together with the financial information form if applicable, at least 30 days before the date fixed for the examination; and

(b) shall be filed, with proof of service, at least three days before the date fixed for the examination.

Notice of Contempt Hearing

(13) A notice of a contempt hearing shall be served by the creditor on the debtor or person to be examined personally as provided in rule 8.02.

Defence and Other Documents

(14) The following documents may be served by mail, by courier, by email, personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03, unless the court orders otherwise:

1. A defence.

2. Any other document not referred to in subrules (1) to (13).

Personal Service

8.02 If a document is to be served personally, service shall be made,

Individual

(a) on an individual, other than a person under disability, by leaving a copy of the document with him or her;

Municipality

(b) on a municipal corporation, 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;

Corporation

(c) on any other corporation, by leaving a copy of the document with,

(i) an officer, a director or another person authorized to act on behalf of the corporation, or

(ii) a person at any place of business of the corporation who appears to be in control or management of the place of business;

Board or Commission

(d) on a board or commission, by leaving a copy of the document with a member or officer of the board or commission;

Person Outside Ontario Carrying on Business in Ontario

(e) on a person outside Ontario who carries on business in Ontario, by leaving a copy of the document with anyone carrying on business in Ontario for the person;

Crown in Right of Canada

(f) on Her Majesty the Queen in right of Canada, in accordance with subsection 23 (2) of the Crown Liability and Proceedings Act (Canada);

Crown in Right of Ontario

(g) on Her Majesty the Queen in right of Ontario, in accordance with section 15 of the Crown Liability and Proceedings Act, 2019;

Attorney General

(g.1) on the Attorney General of Ontario, by leaving a copy of the document with an employee of the Crown at the Crown Law Office (Civil Law) of the Ministry of the Attorney General;

Absentee

(h) on an absentee, 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;

Minor

(i) on a minor, 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;

Mentally Incapable Person

(j) on a mentally incapable person,

(i) 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,

(ii) 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,

(iii) 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;

Partnership

(k) on a partnership, by leaving a copy of the document with,

(i) any one or more of the partners, or

(ii) a person at the principal place of business of the partnership who appears to be in control or management of the place of business; and

Sole Proprietorship

(l) on a sole proprietorship, by leaving a copy of the document with,

(i) the sole proprietor, or

(ii) 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.

Alternatives to Personal Service

8.03 (1) If a document is to be served by an alternative to personal service, service shall be made in accordance with this rule.

At Place of Residence

(2) If an attempt is made to effect personal service at an individual’s place of residence and for any reason personal service cannot be effected, the document may be served by,

(a) 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

(b) on the same day or the following day, mailing or sending by courier another copy of the document to the individual at the place of residence.

Corporation

(3) If the head office or principal place of business of a corporation or, in the case of an extra-provincial corporation, the attorney for service in Ontario cannot be found at the last address recorded with the Ministry of Government Services, service may be made on the corporation,

(a) by mailing or sending by courier a copy of the document to the corporation or to the attorney for service in Ontario, as the case may be, at that address; and

(b) by mailing or sending 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 as recorded with that Ministry.

When Effective

(4) Service made under subrule (2) or (3) is effective on the fifth day after the document is mailed or verified by courier that it was delivered.

Acceptance of Service by Lawyer or Paralegal

(5) Service on a party who is represented by a lawyer or paralegal may be made by leaving a copy of the document with the lawyer or paralegal, or with an employee in the lawyer’s or paralegal’s office, but service under this subrule is effective only if the lawyer, paralegal or employee endorses on the document or a copy of it an acceptance of service and the date of the acceptance.

(6) By accepting service, the lawyer or paralegal is deemed to represent to the court that he or she has the client’s authority to accept service.

Service of Claim

(7) Service of a plaintiff’s claim or defendant’s claim on an individual against whom the claim is made may be made by sending a copy of the claim by registered mail or by courier to the individual’s place of residence, if the signature of the individual or any person who appears to be a member of the same household, verifying receipt of the copy, is obtained.

(8) Service under subrule (7) is effective on the date on which receipt of the copy of the claim is verified by signature, as shown in a delivery confirmation provided by or obtained from Canada Post or the commercial courier, as the case may be.

Crown in Right of Ontario, Attorney General

(9) Service of a document on the Crown in Right of Ontario or on the Attorney General of Ontario may be made by emailing a copy of the document to the email address for service specified for the Crown or the Attorney General, as the case may be, on the website of the Ministry of the Attorney General.

Children’s Lawyer

(10) Service of a document on the Children’s Lawyer may be made by emailing a copy of the document to the email address for service specified for the Children’s Lawyer on the website of the Ministry of the Attorney General.

Public Guardian and Trustee

(11) Service of a document on the Public Guardian and Trustee, and any service of a document that involves leaving a copy with the Public Guardian and Trustee, may be made with respect to the Public Guardian and Trustee by emailing a copy of the document to the email address for service specified for the Public Guardian and Trustee on the website of the Ministry of the Attorney General.

Substituted Service

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.

Service Outside Ontario

8.05 If the defendant is outside Ontario, the court may award as costs of the action the costs reasonably incurred in effecting service of the claim on the defendant there.

Proof of Service

8.06 An affidavit of service (Form 8A) made by the person effecting the service constitutes proof of service of a document.

Service by Mail

8.07 (1) If a document is to be served by mail under these rules, it shall be sent, by regular lettermail or registered mail, to the last address of the person or of the person’s representative that is,

(a) on file with the court, if the document is to be served by the clerk;

(b) known to the sender, if the document is to be served by any other person.

When Effective

(2) Service of a document by mail is deemed to be effective on the fifth day following the date of mailing.

Exception

(3) This rule does not apply when a claim is served by registered mail under subrule 8.03 (7).

Service by Courier

8.07.1 (1) If a document is to be served by courier under these rules, it shall be sent by means of a commercial courier to the last address of the person or of the person’s representative that is on file with the court or known to the sender.

When Effective

(2) Service of a document sent by courier 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.

Exception

(3) This rule does not apply when a claim is served by courier under subrule 8.03 (7).

Service by Email

8.08 (1) Except as otherwise specified in any other rule, if a document is to be served by email under these rules, it shall be sent to,

(a) the last email address provided by the person to be served or the person’s representative or, if no email address is provided, to the person’s or representative’s last known email address; or

(b) in the case of a lawyer or paralegal whose email address is not provided, the email address for the lawyer or paralegal as published on the Law Society of Ontario’s website.

Service by Clerk

(2) In the case of a document to be served by the clerk by email, the document shall, except as otherwise specified in any other rule, be sent to the email address provided for under subrule 1.05.2 (1).

Requirements re Email Message

(3) The email message to which a document served by email in accordance with these rules is attached shall include,

(a) the sender’s name, address, telephone number, and email address;

(b) the name of the person or representative being served;

(c) the date and time of the email; and

(d) the name and telephone number of a person to contact in the event of a transmission problem.

When Effective

(4) Service of a document by email is deemed to be effective,

(a) on the day the email is sent; or

(b) if the email is sent between 4 p.m. and midnight, on the following day.

Notice of Change of Address

8.09 (1) A party whose address for service changes shall serve notice of the change on the court and other parties within seven days after the change takes place.

(2) Service of the notice may be proved by affidavit if the court orders that proof of service is required.

Failure to Receive Document

8.10 A person who has been served or who is deemed to have been served with a document in accordance with these rules is nevertheless entitled to show, on a motion to set aside the consequences of default, on a motion for an extension of time or in support of a request for an adjournment, that the document,

(a) did not come to the person’s notice; or

(b) came to the person’s notice only at some time later than when it was served or is deemed to have been served.

Exceptions

Interestingly, despite the formality of the rules, where a document comes to the attention of the intended recipient by a means other than the formal manner prescribed in the Rules of the Small Claims Court, the service is, generally, deemed valid.  Essentially, the law considers that where a document is served, meaning received by the intended recipient, in a manner other than as per the formal rule, the rule is made moot as the purpose of the rule is simply to ensure that the document is received by the intended recipient.  Accordingly, where an intended recipient received a document in a manner other than per the prescribed rule, the intended recipient is unable to argue that such occurred improperly.  This principle was explained well, albeit by the Alberta Court of Appeal and thereby persuasive rather than binding on Ontario courts, within the case of Hansraj v. Ao, 2004 ABCA 223 as well as stated with brevity in the Ontario case of Atlantic Construction Group Inc. v. 2567616 Ontario Inc., 2021 ONSC 2658 wherein each it was respectively said:

[31]  The court will not set aside service of a document, or set aside a later step needing service, such as default judgment, if the intended recipient (defendant) later actually got the document, or notice of it: Vidito v. Veinot (1912) 1912 CanLII 447 (NS CA), 10 E.L.R. 292, 3 D.L.R. 179 (N.S.) (writ of summons); Hoehn v. Marshall (1917) 12 O.W.N. 193; Morozuk v. Fedorek 1941 CanLII 224 (AB CA), [1941] 1 W.W.R. 382, 389 (Alta. C.A.); Cdn.-Dom. Leasing Corp. v. Corpex 1963 CanLII 168 (ON SC), [1963] 2 O.R. 497 (M.), affd. id. at p. 499n.; Pettigrew v. Robb A.U.D. (M.) 1296, 1297-8, J.D.E. 8303-19103 (Oct. 26, 1983); A.-G. Can. v. Doucette (1992) 1992 CanLII 14217 (AB QB), 133 A.R. 68, 71-2, 11 C.P.C. (3d) 81 (paras. 14-16); Hnatyshyn Singer Thorstad v. Robson (1998) 33 C.P.C. (4th) 135 (Sask.).

[32]  To undo the consequences of not carrying out what an official document directs the recipient to do, it is not enough that he shows that the document was not served on him. He must also show that he did not know of the document: Kistler v. Tettmar [1905] 1 K.B. 39, 74 L.J.K.B. 1 (C.A.) (defendant knew of a judgment and evaded service and knew of an order for an examination in aid and did not come); Fontaine v. Serben 1974 CanLII 251 (AB QB), [1974] 5 W.W.R. 428 (Alta. D.C.), affd. (1976) (C.A.): see Note (1977) 15 Alta. L. Rev. 194 (no service, but learned later); Eyre v. Eyre 1971 CanLII 477 (ON SC), [1971] 2 O.R. 744, 746-7 (M.); cf. Admin. of M.V.A. C.A. v. Gray (1986) 1986 ABCA 122 (CanLII), 71 A.R. 24, 45 Alta. L.R. (2d) 172, 19 C.C.L.I. 246 (C.A.); cf. Golden Ocean Assce. v. Martin (The Goldean Mariner) [1990] 2 Ll. R. 215 (C.A.). A defect in service is curable under R. 558, if the contents of the statement of claim came to the attention of the defendant, even imperfectly: Clarke v. Treadwell [1987] A.U.D. 857, [1987] A.J. #683, Calg. 16149 (C.A. June 11). (One may compare Sissons v. Whiteside, Calg. 0201-0248-AC, 2004 ABCA 96 (Mar. 9).)

[33]  To set aside or nullify service of a statement of claim then would be even more unjust if the defendant were intending to argue that service now was impossible (e.g., because of expiry of the statement of claim), or if the plaintiff had in the meantime relied upon apparent service to his detriment.

[34]  So a defendant moving to set aside purported service is expected to swear that neither any copy of the statement of claim, nor knowledge of its contents, was known to him. For instance, he might swear that he never saw the advertisement in the newspaper, never heard of it, and was thousands of miles away at a mining camp in Bolivia at all material times. In practice, such contents are usual in a defendant’s affidavit.

[52]  With respect to validating service, Rule 16.08 of the Rules permits validation of a manner of service that is not authorized by either the Rules or an order, subject to the court being satisfied (i) that the document came to the notice of the person to be served or (ii) that the manner of service is such that it would have come to that person’s notice, except for the person’s own attempts to evade service. ...

Validating Service

The Rules of the Small Claims Court lack a rule specifically addressing what should happen when the intended recipient receives a document in a manner that falls outside the Rules of the Small Claims Court.  Accordingly, in such a circumstance, reference to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, becomes necessary; and whereas the Rules of Civil Procedure provide for validation of service, a Motion to Validate Service may be brought.  The relevant Rules of the Small Claims Court permitting reference to the Rules of Civil Procedure as well as the relevant Rules of Civil Procedure state:

Matters Not Covered in Rules

1.03 (2) If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

Validating Service

16.08 Where a document has been served in a manner other than one authorized by these rules or an order, the court may make an order validating the service where the court is satisfied that,

(a)  the document came to the notice of the person to be served; or

(b)  the document was served in such a manner that it would have come to the notice of the person to be served, except for the person’s own attempts to evade service.

Summary Comment

Generally, document that comes to the attention of the intended recipient, despite coming to attention via a mode that is contrary to the rules of service applicable to the document, will be deemed served.  Essentially, the rules of service are in place to ensure that a served document comes to the attention of the intended recipient; accordingly, if the document comes to attention by a means other than as per the rules, the rules are made moot.


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