One of the most critical steps in a legal proceeding is ensuring that all parties are properly served with the originating process. But what happens if a party hasn’t been formally served yet takes action by delivering a defence, notice of intent to defend, or notice of appearance?

Rule 16.01(2) of the Rules of Civil Procedure states:

“A party who has not been served with the originating process but delivers a defence, notice of intent to defend or notice of appearance shall be deemed to have been served with the originating process as of the date of delivery.”

In simple terms, if a defendant—or any responding party—files one of these documents, they are automatically considered served from the moment of filing. This rule helps keep the case moving without getting bogged down by technicalities in the service process.

Canada (Commissioner of Competition) v. Yellow Page Marketing B.V.

In this case, the Commissioner of Competition brought an application against several respondents for deceptive marketing practices. Backoffice Support, one of the respondents, later moved to set aside the judgment on the grounds that it had not been properly served. They claimed they had not retained counsel and, therefore, were unaware of the proceeding.

The situation became more complex when a law firm filed a Notice of Appearance on behalf of all respondents, including Backoffice Support. Despite Backoffice Support’s argument that this filing was a mistake or accident, the court noted:

“Based on Rule 16.01(2), Backoffice Support is deemed to have had notice, in spite of it not having been served with the Application, because Sim Lowman filed a notice of appearance in its name.”

In other words, the filing of the Notice of Appearance meant that Backoffice Support was considered properly notified, and thus it could not later argue that the judgment should be set aside due to a lack of service.

Court’s Analysis

The court was clear that the rule applies automatically. In contrast to rules that allow for judicial discretion (such as Rules 24.04, 37.09, or 48.07), Rule 16.01(2) offers no such latitude. Once a Notice of Appearance is filed, service is deemed effected. The court referenced Atlas Maintenance Systems (A) Inc. v. Vratsidas for support on the non-discretionary nature of this rule.

By filing the Notice of Appearance, Backoffice Support was effectively attorning to the court’s jurisdiction. This prevented the company from later arguing that it was never properly served, even if there were later disputes about the authority or instructions given to counsel. The court’s decision underscores that a party’s conduct in filing the notice is dispositive.

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