Be careful: You may have mail, but may not know about it!
Spam filters prevent us from being inundated with often-useless emails. However, the filters often direct important mail into the spam folder.
A recent decision of the Ontario Superior Court of Justice, Tariq v. Rehman, 2022 ONSC 3525 (CanLII), held that it is not an excuse to say that the email went into a spam folder and was therefore unread. There, the father in a family law proceeding claimed that he did not have notice that the mother’s claim was proceeding by way of an undefended trial. The father was served with the mother’s case conference brief. The father did not attend the case conference. At the case conference, the mother’s matter was ordered to proceed by way of an uncontested trial. The judge’s endorsement was sent to the father by email. The father claimed that he did not receive it, and that the email went into his spam folder.
On the motion to set aside the rulings made at the uncontested trial, the court rejected the father’s argument. The court held that the father was “fully aware” of the mother’s proceeding. With respect to the email going into the spam folder, the court stated that “While [the father] says that it went into his junk/spam email, this is not an excuse. It is his obligation to check his spam or junk folder and there is no evidence that he ever did so.”
In TA Appliance Inc. v. Carl Maddix, 2022 CanLII 42290 (ON LRB), the Ontario Labour Relations Board allowed a party to seek an extension of the time within which he could appeal an order. The party claimed that an Order to Pay went into his spam folder, and he did not become aware of it until after the deadline for appealing had passed. This explanation was accepted.
Under the Rules of Civil Procedure, service by email of most documents is permitted. Documents other than originating processes can be served by email to the last email address provided by the party or the party’s lawyer. Service by email between 4 pm and midnight is deemed to be effective the following day. A party who does not receive a document may set aside the consequences of default if they can show that the document did not come to the person’s notice, or came to the person’s notice only at some time later than when it was served or deemed to have been served: Rule 16.07. In light of the finding in Tariq, a court might not accept a claim that an email went into a spam folder.
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