According to recent news reports, Prince Andrew has allegedly been “actively evading” service of legal documents in relation to a proceeding commenced against him in the United States.  Specifically, he has allegedly stopped spending time in public areas, has moved from place to place in order to make it difficult to determine where he is currently staying, and has instructed guards at his places of residence to refuse to accept service or to allow process servers to meet with the Prince personally.  As a result, a hearing has been scheduled to address the issue of whether service upon Andrew by other means is effective in light of his apparent evasion of personal service.

In estates matters, we sometimes see disgruntled beneficiaries or estranged family members attempting to evade service.  In Ontario, our Rules of Civil Procedure offer several tools for addressing situations in which respondents take active steps to evade service.  Rule 16.04 permits a party to request an order for substituted service where “it is impractical for any reason to effect prompt service of an originating process or any other document required to be served personally or by an alternative to personal service under these rules”, and, “where necessary in the interest of justice, [the court] may dispense with service” altogether.  Alternatively, where unsuccessful steps have already been taken to effect service, Rule 16.08 permits a court to make an order validating service if “the document came to the notice of the person to be served; or 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.”  In either scenario, the materials filed with the court should outline the steps taken to attempt and/or evade service and explain why proper service is impractical (such as a detailed affidavit from the process server).

While the Rules of Civil Procedure still require personal service with notice of some originating processes and other documents, we have seen some relaxation of this standard during the COVID-19 pandemic, when personal service has been unsafe and/or impractical.

Thank you for reading,

Nick Esterbauer