Tag: substituted service
A recent review of case law, helpfully summarized here, highlights the increasing use of social media with respect to the service of Court documents.
According to Rule 16.04 of the Rules of Civil Procedure, “Where it appears to the court that it is impractical for any reason to effect prompt service of an originating process of any other document required to be served personally or by an alternative to personal service…the court may make an order for substituted service…”. Therefore, the Court’s ability to approve service by a non-conventional manner is found here.
Unreported in Ontario, the 2014 decision of Juzytsch v. Terlecki, discussed in the Law Times, notes that Justice Healey of the Superior Court of Justice ordered substituted service of a statement of claim via Facebook. This relief was granted on certain criteria being met, including establishing that the person’s whereabouts are unknown despite diligent investigation.
Service by Facebook has also been relied upon in the United States of America. A recent 2015 reported decision from the Supreme Court, New York County, permitted the plaintiff to serve the defendant with a divorce summons “…using a private message through Facebook”. Certain criteria also had to be met including: the inability to serve the summons personally; that it would be “impracticable” to serve the defendant by substitute service on a person of suitable age and discretion or by using “nail and mail”; and it must be shown that service through Facebook can reasonably be expected to give the defendant actual notice that they are being sued.
Since it appears to be the case in New York County, as litigants are prohibited from serving other litigants, the plaintiff’s lawyer was required to log into the plaintiff’s Facebook and identify themselves before sending the summons, either by attachment or hyperlink. Additionally, the plaintiff and their counsel were required to call and text the defendant advising of the delivered summons via Facebook.
As of January 1, 2015, the Ontario Rules of Civil Procedure have permitted service by e-mail in certain instances, details of which can be found in our prior blog. Although the Court seems to be embracing technology to effect service, given the limited situations as to when such non-conventional ways are permitted, the Courts nonetheless ensure that litigants be made aware of any such claim which requires service on them.