Serving Documents via CyberSpace

 

Serving Documents via CyberSpace

The Canadian legal system isn’t exactly known for being “cutting edge” on the technology front. When it comes to service key litigation documents such as Statements of Claim, the Ontario Family Courts – and even Small Claims Courts, where the procedure is relatively relaxed – the traditional, formal methods such as personal service and registered mail still govern. Other less pivotal documents, such as those that are being served by a court clerk to the parties in an existing action, can be served by fax or mail.

But service by e-mail has never taken off in Ontario. At one time, the prospect of allowing court staff to use service via e-mail for certain documents was toyed with, but it was eventually eliminated from the Court Rules by amendments which took effect on July 1, 2006.

Having said that, the Family Law Rules still contain some exceptions: For example, an Order removing a lawyer from a case can be served on the client by e-mail sent to the client’s last known address. Also, certain Notices can be served by e-mail, specifically:

• a notice of filing or refiling a support order with the Director of he Family Responsibility Office (Rule 26(11));

• a notice of transfer of enforcement (Rule 26(14));

• a statement of income sent by an income source to a recipient (Rule 27(7)); and

• a notice to stop garnishment (Rule 29(31)).

Nonetheless, the more traditional approach has been loosened in some unique cases, both in Canada and elsewhere.

In Alberta, a 2009 Order by a Master in the unreported case of Knott v. Sutherland held that the plaintiffs in an Estates action could use substituted service in connection with numerous defendants by – among other things – sending notice of the action to the Facebook profile of one of them.

This same type of approach has been seen previously in Australia, where a couple who defaulted on their mortgage were legally served court documents through Facebook. In that case, the couple were very elusive, did not appear to live at their listed residence, and no longer worked at their last known place of employment. Facebook seemed to be the only place to find them, and in light of the fact that their Facebook profiles listed their names, dates of birth, e-mail addresses and friends lists (which also showed that the couple were Facebook “friends” with each other), the court held that this was sufficient identification. However, it stipulated that the court documents be designated as “private” so that other Facebook visitors to the couples’ sites could not read them.

And several years ago, a U.K. High Court ordered that notice of an injunction be served by way of Twitter. In that case, an unknown Twitter user had been posting to a particular site using the name “Donal Blaney”, which was the same name as a right-wing political blogger (and lawyer) who had his own blog at a site called “Blaney’s Blarney”. The Order was served via Twitter against the anonymous user, demanding that the user reveal his or her identity, and cease impersonating and breaching the copyright of Donal Blaney. It also contained a link to the original court Order. This kind of document service has now become known in U.K. legal circles as the “Blaney’s Blarney Order”.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit www.RussellAlexander.com