One critical piece of litigation is the service of documents. This is the process of ensuring a party to the litigation is aware of the proceeding and proving to the court that the party has received the document according to the rules of service.

Service of documents is governed by the Rules of Civil Procedure, which is Regulation 194 to the Courts of Justice Act. Starting on January 30, 2023, the process for proving that a document had been served and that service was effective is becoming more streamlined.

Historically, service was proven to the court through an affidavit of service. Rule 16.09 states that:

16.09 (1) Service of a document may be proved by an affidavit of the person who served it (Form 16B).

However, starting in 2023, a lawyer’s certificate may now be used to demonstrate service. Rule 16.09(1.1) will read:

Lawyer’s Certificate

(1.1) A lawyer may prove service of a document by a lawyer’s certificate of service (Form 16B.1) if the lawyer served the document or caused it to be served and is satisfied that service was effected.

The Rules of the Small Claims Court are also changing to reflect the ability for both lawyers and paralegals practicing in that court to prove service in this way. Rule 8.09.1(3) will read:

(3) A lawyer or paralegal may prove service of a document by a certificate of service (Form 8B) if the lawyer or paralegal served the document or caused it to be served and is satisfied that service was effected.

This means that a third party affidavit of service will no longer be required. This change is especially useful for sole practitioners and small firms that may rely on lawyers to manage the service of documents. It will allow lawyers to quickly certify that a document has been served. It is certainly a welcome change in improving efficiency within the court system.

Thanks for reading. Mark Lahn.