A comment on minimum conditions of personal service
Everybody knows that they have to serve the opposing party. There are numerous examples where service fails even though it is the critical first contact with the opposing party.
Can-Dom Leasing Corp. Ltd. v. Corpex Ltd [1963] 2 OR 497 remains the cited case in Watson & McGowan’s Ontario Civil Practice (2020) regarding personal service requirements.
In that case, the process server attended upon the defendant’s residence, knocked, a person not the defendant answered and said the defendant was not there. The process server then apparently meets the defendant in the hallway, calls his name and advises of a service to be made upon him.
The defendant ignores him and goes into the apartment and closes the door. The process server knocks again, the girl answers saying that the defendant is not there. The process server leaves the document at the door.
Is this sufficient service?
The Master in Can-Dom said yes, relying upon older English authorities indicating that ‘seeing’ the defendant and ‘bringing the document to his notice’ is sufficient service. Can-Dom has been cited only 14 times since 1963 and none in an Ontario superior court. Alberta cites the case 7/14 times.
Another old Ontario case re Consiglio [1971] 3 OR 798 (master) said this:
[8] Accordingly if, on cross-examination, counsel for the applicant is able to elicit evidence to the effect that the legal documents in question came to the knowledge or possession of Bari Consiglio, either directly or indirectly, from Robert Boast in sufficient time to enable Bari Consiglio to obtain legal advice and to be represented in these proceedings, the Judge hearing these proceedings may well come to the conclusion that Bari Consiglio has been personally served.
This case was cited only 11 times since, having been followed once in the Ontario Superior Court (1983). That 1983 case was not again cited in Ontario.
Under the new Ontario Rules
Of more immediate interest after the revision of the rules in Ontario, is Paterson v. Lafleche [2004] OJ No 2029 where it was determined that leaving a document in the mailbox at an address that the defendant once (but no longer!) lived at, is not equivalent to leaving the document with an adult member of the household of the last known address. (Rule 16.03(5))
2019 cases
Of the 2019 ‘service’ cases in Ontario superior court, in Tyers Estate v.Yalda [2019] O.J. No 4984, the judge ignored claims of improper service where it was clear that the defendant ‘had notice of the claim’ (para 34). Particularly because the defendant engaged counsel to deal with it. (para 32).
In Leen Steels Ltd. v. Atlas Corp [2019] O.J. No. 4473, the serving lawyer had a fax confirmation and proof of email service. This was still not deemed sufficient in this particular case. (para 22) largely because of an unsophisticated party being served.
