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Canada

Almost all cases, including civil cases, are initially heard in provincially or territorially established courts. In Canada, rules for service vary from province to province and are regulated under a different set of rules depending on the type of case: civil, criminal, family, and small claims. Service of process in civil cases in Canada is primarily regulated by provincial or territorial level civil procedure rules. Though provisions may vary, most jurisdictions recognize personal or alternative forms of service, and in some circumstances, as in the province of Ontario, court-ordered substitute service where courts can order service through email or other social media platforms. The Supreme Court rules recognize email as a primary mode of service and the Federal Courts rules allow email as a substituted service.

I. Background

Canada’s judicial system has four levels of organization, including federal courts, which encompass the Supreme Court, the Federal Court, the Federal Court of Appeal, and the Tax Court.[1] Under Canada’s Constitution, provincial legislatures have exclusive jurisdiction over “[t]he Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.”[2] At the provincial/territorial level, there are courts of appeal, superior courts, and “territorial (lower) courts.”[3]

Almost all cases, including civil cases, are initially heard in provincially or territorially established courts. In Canada, rules for service vary from province to province and are regulated under a different set of rules depending on the type of case: civil, criminal, family, and small claims. Service of process in civil cases in Canada is primarily regulated by provincial or territorial level civil procedure rules. Civil cases at the federal level are regulated by the Federal Courts Rules.

II. Supreme Court

For the Supreme Court of Canada, the methods of service of documents are listed in Rule 20 of the Rules of the Supreme Court of Canada.[4] According Rule 20 (1) “[s]ervice of any document on a party shall be made on the party’s counsel or agent at that person’s last known address, last known fax number or last known email address . . . .”[5] However, if the party is not represented by counsel, service can be effected “on the party or the party’s agent” by:

(a) personal service made on any day other than a holiday;

(b) ordinary mail, except for originating documents or documents filed in support;

(c) registered or certified mail or by courier;

(d) fax transmission, except for

(i) originating documents or documents filed in support, and

(ii) documents that are longer than 40 pages unless the party being served consents to service by fax transmission;

(d.1) email; or

(e) leaving a copy with a party’s counsel or agent or with an employee in the office of the counsel or agent.[6]

Also, if a document is served by email, the email must contain: “(a) the title of the document being transmitted; (b) the sender’s name, address and telephone number; (c) the name of the party being served and of the party’s counsel, if any; (d) the date and approximate time of the transmission; and (e) an indication of the number of attachments to the email or an indication of where the party being served can access the document electronically.”[7]

If service is made by email, proof of service shall be verified by filing “an affidavit of service in Form 20” annexing a “copy of the email and a copy of either the email read receipt or the confirmation by the party served that the service was effected electronically.”[8]

Under Rule 20 (10), the Registrar of the Supreme Court “may, on filing of an affidavit by the serving party, make any order for substitutional service that the circumstances require.”[9]

III. Federal Courts

A. Personal Service

Procedure in the Federal Courts is under the Federal Court Rules.[10] Rule 127 (1) stipulates that when an “originating document” has been issued,[11] it must be served personally “other than in an appeal from the Federal Court to the Federal Court of Appeal or an ex parte application under rule.”[12] Rule 128 (1) sets out how personal service on an individual is effected (excluding an individual under a legal disability):

(a) by leaving the document with the individual;

(b) by leaving the document with an adult person residing at the individual’s place of residence, and mailing a copy of the document to the individual at that address;

(c) where the individual is carrying on a business in Canada, other than a partnership, in a name or style other than the individual’s own name, by leaving the document with the person apparently having control or management of the business at any place where the business is carried on in Canada;

(d) by mailing the document to the individual’s last known address, accompanied by an acknowledgement of receipt form in Form 128, if the individual signs and returns the acknowledgement of receipt card or signs a post office receipt;

(e) by mailing the document by registered mail to the individual’s last known address, if the individual signs a post office receipt; or

(f) in any other manner provided by an Act of Parliament applicable to the proceeding.[13]

Personal service on a corporation is regulated by rule 130 (1), which states that it is effected:

(a) by leaving the document

(i) with an officer or director of the corporation or a person employed by the corporation as legal counsel, or

(ii) with the person apparently in charge, at the time of the service, of the head office or of the branch or agency in Canada where the service is effected;

(b) in the manner provided by any Act of Parliament applicable to the proceeding; or

(c) in the manner provided for service on a corporation in proceedings before a superior court in the province in which the service is being effected.[14]

B. Substituted and Alternative Service

Rule 136 (1) allows for court-authorized “substituted service” or dispensing with service “[w]here service of a document that is required to be served personally cannot practicably be effected.”[15]

Rule 137 (1) stipulates that a document that is to be personally served outside Canada may be served in the manner set out in the rules above or in the “manner prescribed by the law of the jurisdiction in which service is to be effected.” However, where service is to be “effected in a contracting state to the Hague Convention, service shall be as provided by the Convention.”

Other documents which are not “originating documents” do not have to be served personally, and alternative methods of service can be effected by:

(a) personal service;

(b) leaving it at the party’s address for service;

(c) mailing it or delivering it by courier to the party’s address for service;

(d) transmitting it by fax to the party’s solicitor of record, or, if the party has no solicitor of record, to the party;

(e) transmitting it to the electronic address [emphasis added] set out by the party in Form 141A; or

(f) any other means that the Court may direct.[16]

A party consents to the electronic service of documents by serving and filing a notice of consent in Form 141A.[17]

IV. Provincial (Ontario)

A. Personal or Alternative Service

In Ontario, the Rules of Civil Procedure set out the modes of service available to parties in a civil dispute.[18] Rule 16.01 (1) stipulates that an “originating process”[19] shall be served personally as provided in rule 16.02 or by an alternative to personal service as provided in Rule 16.03 to a lawyer, last mailing address, or place of residence.[20] Personal service on a corporation can be effected by “leaving a copy of the document with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be in control or management of the place of business.”[21] Rule 16.03 (6) sets out mail as an alternative to personal service for a corporation under these circumstances:

(6) Where the head office, registered office or principal place of business of a corporation or, in the case of an extra-provincial corporation, the attorney for service in Ontario cannot be found at the last address recorded with the Ministry of Government and Consumer Services, service may be made on the corporation by mailing a copy of the document to the corporation or to the attorney for service in Ontario, as the case may be, at that address.[22]

B. Substituted Service

Rule 16.04 (1) provides that “[w]here it appears to the court that it is impractical for any reason to effect prompt service of an originating process or any other document required to be served personally or by an alternative to personal service under these rules, the court may make an order for substituted service or, where necessary in the interest of justice, may dispense with service.”[23] According to one lawyer, the court retains this “discretion under Rule 16.04 to make an order for substituted service where it appears that it is impractical for any reason to effect service of an originating process or any other document required to be served personally or by an alternative to personal service. There are no limits on a court’s creativity in making an order for substituted service.”[24]

The Ontario Court of Justice in 2007 laid out a test before substituted service can be approved:

The plaintiff must satisfy the court, on proper evidence, that the proposed method of substituted service will have ”some likelihood“ or a ”reasonable possibility“ of bringing the action to the attention of the defendant, otherwise ”the exercise of obtaining an order for substituted service is a charade.” . . .  One must select the mode of service ”that is most likely to bring the document in question to the attention of the defendant.“ . . . This could include publication in a newspaper in the defendant’s locality. However, ”substituted service is not available if the whereabouts of the . . . defendant are unknown.“ . . . If ”the defendant will not learn of the action through substituted service“ it may be ”more appropriate to ask for an order dispensing with service altogether.“ . . . Furthermore, before substituted service is ordered the plaintiff must show that ”all reasonable steps have been taken to locate the party and to personally serve him or her. What is reasonable will depend on the nature of the case, the relief claimed, the amount involved and all of the surrounding circumstances.” . . . Substituted service is not intended to spare the inconvenience or expense or difficulty of personal service if personal service can be effected.[25] 

If substitute service is approved for email, the following information needs to be included:

16.06.1 (1) The e-mail message to which a document served under subclause 16.01 (4) (b) (iv) or clause 16.05 (1) (f) is attached shall include,

(a)  the sender’s name, address, telephone number, fax number, if any, and e-mail address;

(b)  the date and time of transmission; and

(c)  the name and telephone number of a person to contact in the event of a transmission problem. O. Reg. 170/14, s. 6.

Order for Service by E-mail

(2) If parties do not consent to the service of a document by e-mail, the court may, on motion, make an order directing that the document be served by e-mail, on such terms as are just. O. Reg. 170/14, s. 6.[26]

C. Service Outside Ontario

Rule 17 contains the provisions to regulate service outside Ontario, with Rule 17.02 listing the circumstances in which documents can be served without leave of the Court, and Rule 17.03 detailing when service must be effected with leave of the Court. In terms of modes of service, Rule 17.05 stipulates that:

General Manner of Service

(2) An originating process or other document to be served outside Ontario in a jurisdiction that is not a contracting state [meaning a contracting state under the Hague Service Convention] may be served in the manner provided by these rules for service in Ontario, or in the manner provided by the law of the jurisdiction where service is made, if service made in that manner could reasonably be expected to come to the notice of the person to be served.  R.R.O. 1990, Reg. 194, r. 17.05 (2).

Manner of Service in Convention States

(3) An originating process or other document to be served outside Ontario in a contracting state shall be served,

(a)  through the central authority in the contracting state; or

(b)  in a manner that is permitted by the Convention and that would be permitted by these rules if the document were being served in Ontario. O. Reg. 535/92, s. 7; O. Reg. 231/13, s. 6.[27] 

V. Courts Recognizing Social Media and Other Electronic Means of Service

Courts in a number of Canadian provincial jurisdictions have allowed substituted service via social media.[28] As noted above, Rule 16.04 of Ontario’s Rules of Civil Procedure is the framework for issuing orders for substituted service through “Facebook, Twitter, or other social media platforms.”[29] In 2014, in the unreported decision of Juzytsch v. Terlecki, the Superior Court of Justice “ordered substituted service of a statement of claim via Facebook.”[30] In 2018, the Ontario Superior Court of Justice allowed service through Instagram and LinkedIn:

The court granted service effective five days after Vasdani [the lawyer] sent the necessary documents to the defendant through Instagram and LinkedIn, as well as through mail to her last known address. Vasdani served the defendant in a private message on Instagram. The court did not require a read receipt be obtained for the service to be effective.[31]

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Prepared by Tariq Ahmad
Foreign Law Specialist
September 2020

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Last Updated: 12/30/2020