Personal Service
An originating process is the very first document which allows either a plaintiff in an action, or an applicant in an application, to commence legal proceedings. Service of an originating process serves the important function of providing notice of the legal proceeding to those parties involved, and to other persons who could be affected by its outcome.
As a result, an originating process differs from other court documents in two ways. First, it must be issued before it is served. Second, it must be served by personal service (see rule 16.02), i.e., a copy of the document must be left with the person or entity being served. This personal service requirement is meant to ensure adequate notice is provided.
However, personal service is not always possible. A party or a person who may be affected in a proceeding may be out of the country, or their whereabouts may be unknown. What is the law on substituting personal service, or dispensing with it altogether?
Substitution of Personal Service
Where permitted by subrule 16.03(1), or by court order, there are three methods of substituting service on an individual. First, it is possible to substitute personal service with service on a person’s lawyer (or a member of that lawyer’s firm). Second, a copy of the originating process can be sent by mail to the individual’s last known address. Third, a copy of the same can be left at the individual’s place of residence.
A litigant is not entitled to substituted service simply because it is inconvenient to effect personal service. Personal service is the default requirement. Substituted service is something which a litigant must petition for, before a judge will grant it.
The test to be met for substitute service is: (a) the party seeking substituted service must satisfy the court, with proper evidence, that all reasonable steps have been taken to locate the party for whom substitute service is requested, and to personally serve him or her, and (b) the proposed method of substituted service, i.e., by lawyer, by mail to last known address or place of residence, will have “some likelihood” or a “reasonable possibility” of bringing the proceeding to the attention of the defendant or respondent.
Dispensing with Personal Service
In rare circumstances, the personal service requirement can be dispensed with altogether. This means substitution of personal service would no longer be required.
This would only typically be ordered where substituted service cannot be effected. This might mean that the specific whereabouts of the person to be served is entirely unknown, such that there is no last known mail address, address, or the person has no lawyer. It might also mean that substituted service will have no reasonable possibility of reaching the person, for example, the only known address was from 30 years ago and that person has since relocated to another country.
In all cases, it must still be shown that reasonable steps were taken to attempt substituted service.
The Takeaway
Whether or not a court will order substituted service or dispense with personal service will depend on the nature of each case, the relief claimed, the amount of money in dispute, and all the surrounding circumstances.
Substituted service is not intended to spare the plaintiff or applicant the inconvenience or expense or difficulty of personal service, if that personal service can be effected. Waiver of service is a rare remedy reserved only for situations where substituted service is likely impossible.
