10.4 Service of Documents under the Rules of Civil Procedure

Process serving is not a licensed activity in itself. The ministry's study guide states that any individual can serve documents and no private investigator licence is required for service alone. Investigators are still often hired by law firms, companies and individuals to locate and serve people, and the ministry's test-preparation material covers the Rules of Civil Procedure in detail. Getting service wrong can delay a case, waste a client's money and expose the investigator to trespass or other liability.

Civil vs. Criminal Proceedings

• Civil law governs disputes between private persons or businesses. Ontario's Rules of Civil Procedure (R.R.O. 1990, Reg. 194) set out how civil cases proceed and how documents are served in the Superior Court of Justice. Small Claims Court and family courts have their own rules.
• Criminal matters proceed under the Criminal Code and are not governed by the Rules of Civil Procedure.
• Parties: the plaintiff (or applicant) starts the action, the defendant (or respondent) is sued, and a third party may be brought in, usually by the defendant.

Typical documents an investigator may serve include a statement of claim, motion records, family law applications and a summons to witness. The ministry's guide mentions "petitions for divorce"; current Ontario family cases use the Family Law Rules, which have their own service provisions, so follow the client's instructions on which rules apply.

How Documents Must Be Served (Rule 16)

Originating process

An originating process, such as a statement of claim, must be served personally (rule 16.02) or by an alternative to personal service (rule 16.03) (rule 16.01(1)). Most other documents can be served more simply, for example on the party's lawyer, unless the rules or an order require personal service.

Personal service (rule 16.02)

Two practical rules follow from the ministry's guidance:

• Refusal does not defeat service. Service is effected when the server hands the document to the named person, whether or not they accept it.
• Identify the person clearly, both at the moment of service and in the affidavit. Usually the person confirms their name. Some lawyers ask for a signature acknowledging receipt or for identification. If the person evades service, confirm identity through co-workers, neighbours or other reliable sources.

Alternatives to personal service (rule 16.03)

• Acceptance by a lawyer: the lawyer endorses an acceptance of service on the document (16.03(2)).
• Mail with an acknowledgment of receipt card (Form 16A): effective only when the sender gets the signed card back (16.03(4)).
• Service at the place of residence (16.03(5)): if a personal-service attempt at the person's residence fails, leave a copy in a sealed envelope addressed to them with an apparently adult member of the household, and mail another copy to the residence the same day or the next day. Service is effective on the fifth day after mailing.

Substituted service and validation

• If prompt personal service is impractical for any reason, the court may order substituted service, such as by email, by posting, or through a relative, or may dispense with service (rule 16.04). The order states when service becomes effective.
• The ministry's guidance for a person who will not answer the door is to contact the client and report the situation. The lawyer or client then decides whether to apply for substituted service. The investigator does not improvise a method.
• Where a document reached the person in an unauthorized way, or would have but for the person's own evasion, the court may validate the service (rule 16.08).

Proving Service: The Affidavit of Service

• Service is usually proved by an affidavit of the person who served it (Form 16B) (rule 16.09(1)). The ministry stresses that the investigator who actually served the document must swear the affidavit, before a lawyer or a commissioner for taking affidavits.
• The affidavit records the date, time, place and manner of service, how the person was identified, and what was said.
• Correcting errors: if you find an error before swearing, tell the commissioner, make the correction, initial it, and then swear that the affidavit is accurate. Never swear an affidavit you know is wrong. A knowingly false affidavit is perjury (Criminal Code s. 131).

Summons to Witness and Attendance Money (Rule 53.04)

A party who needs a witness at trial may serve a summons to witness (Form 53A), which can also require the witness to bring documents.

• The summons must be served personally. An alternative to personal service is not allowed (53.04(4)).
• Attendance money, calculated under Tariff A and commonly called conduct money, must be paid or tendered to the witness at the same time (53.04(4)).
• Service and payment may be proved by affidavit (53.04(5)).
• If a properly served witness who received attendance money fails to attend, the judge may issue a warrant for arrest (Form 53B) (53.04(7)).

The ministry notes that a reluctant or evasive witness may require several attempts at different times of day, because the summons must be served on the witness personally.

Obeying the Law While Serving

There is no justification for breaking the law to serve a document:

• Trespass to Property Act: in an apartment building you must enter lawfully, for example by being let in or using the building's normal visitor access. The TPA s. 3(2) implied permission covers approaching a door by the apparent approach. It ends if the occupier tells you to leave.
• No impersonation: never pose as police, a sheriff or a courier to get a door opened. A "peace officer" under Criminal Code s. 2 includes a person employed for the service or execution of civil process, such as a court enforcement officer, so claiming that status breaches s. 130 and PSISA s. 39.
• PSISA s. 9: an investigator may serve documents but may not act as a bailiff or with respect to an eviction under the Residential Tenancies Act, 2006.

Service Checklist

1. Confirm which rules apply and the method the client or lawyer requires.
2. Verify the subject's identity and address with at least two sources.
3. Carry the correct documents, plus attendance money for a summons to witness.
4. Serve lawfully, and record exact time, place, description and words spoken in your notes.
5. If service fails, report to the client rather than improvising.
6. Complete and swear the affidavit of service (Form 16B) promptly before a commissioner.