How Many Times Can Plaintiff Ask For Subsituted Service

Having trouble locating and serving a defendant? You may want to consider substituted service upon their liability insurer.

This post was written by Andrea Girones:

Locating and serving a defendant with a statement of claim (or other originating procedure) can often be a tiresome, onerous task, even for the best process servers and investigators. Service becomes even more than complicated when a defendant is purposefully evasive.

If yous are having trouble locating and serving a defendant, you may demand to bring a motion to seek an society for substituted service, and may wish to have the claim substitutionally served upon their liability insurer. Rule 16.04 of the Rules of Civil Process deals with orders for substituted service and for dispensing with service.

Ii cases dealing with this issue are Laframboise v. Woodward (2002), 59 O.R. (3d) 338, 2002 CarswellOnt 1448 (Ont. S.C.J.) and Chambers v. Muslim (2007), 2007 CarswellOnt 6438, 87 O.R. (3d) 784 (Ont. Principal).

In Lafromboise, Justice Quinn's commentary on the aforesaid Rule and the state of the law on the issue can be summarized as follows:

Rules 16.04(ane) of the Rules of Ceremonious Process permits the court to make an order for substituted service where it appears to the courtroom that it is "impractical for any reason to effect prompt service of an originating process". "Impractical" means "unable to exist carried out or washed". Thus, in a motion under rule 16.04(ane) there is an obligation upon counsel to prove that he or she is unable to carry out prompt personal service. Mere difficulty in serving a accused personally is not plenty.

While dominion 16.04(1) does non say that substituted service must bring dwelling house to a defendant knowledge of the action, substituted service cannot exist intended only as an artificial alternative to personal service. The form of substituted service must take a reasonable possibility of bringing the activity to the attention of the defendant.

Justice Quinn goes on to annotate on when an order dispensing with service is advisable at paragraph 14 of his decision:

If the defendant will non larn of the activeness through substituted service and then it strikes me as more appropriate to ask for an order dispensing with service birthday. In my view, substituted service is non available if the whereabouts of the defendant are unknown.

Justice Quinn goes on to comment on a further requirement earlier an lodge for substituted service tin can exist made:

An undertaking by counsel for the plaintiff not to motility to strike out the defence if the insurer is unable to produce the defendant for discovery is a requirement before an order for substituted service on the defendant's insurer will be granted. Such an undertaking is not sufficiently given in a letter; it must be contained in the supporting affidavit.

The issue of substituted service on a liability insurer was subsequently commented on in Chambers by Master Dash, who at paragraph 25 and 27 noted the following:

In my experience, insurers who are served with motions for substituted service upon them rarely oppose. Even if there are coverage problems, the insurer will rarely oppose, unless of course the insurer did not insure the defendant's motor vehicle at the time of the accident. This could occur for example if the policy had lapsed or been cancelled or if the wrong insurer was named. … If the insurer is unable to locate their insured they may withal agree not to oppose the motion and may even put in a defense force on behalf the insured, but with conditions such as an order that the defence non be struck if they are unable to produce their insured for discovery.

In my view, if the plaintiff has fabricated all reasonable efforts to locate and serve the defendant without success, it would exist appropriate to gild substituted service on the liability insurer, provided that such service was in improver to another method of service.

The second method of service could include mailing to the accused's last known address if there is a reasonable possibility of the mailed copy coming to the accused's attending, or by publication in ii editions of a newspaper in the locality where the defendant is known to reside or in a nationally circulated newspaper if there is evidence the defendant resides in Canada.

If the defendant's whereabouts are totally unknown, the appropriate disposition is to dispense with service of the statement of claim and to forward a "courtesy" copy to the insurer. Such motions should normally be on notice to the insurer. If the motion is served and the insurer fails to respond, the order should be made only with some testify that the insurer provided liability coverage to the defendant on the date of the accident. This could be as uncomplicated equally the insurer acknowledging in a letter that they insured the defendant on the material engagement.

If you are having trouble locating and effecting service upon a defendant, a reading of Rule 16.04 of the Rules and of the Laframboise and Chambers cases volition certainly set you off in the correct direction.

How Many Times Can Plaintiff Ask For Subsituted Service,

Source: https://gironeslawyers.com/having-trouble-locating-and-serving-a-defendant-you-may-want-to-consider-substituted-service-upon-their-liability-insurer/

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