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Ontario|Small Claims CourtStarting the Lawsuit 543 Serving a Statement of Claim To have a trial at Small Claims Court, the plaintiff, who is the person starting the lawsuit, is responsible for delivering a copy of the Statement of Claim to the defendant. This is known as serving the defendant.
There are two main ways to serve your Statement of Claim. The first is to deliver it to the person you are serving. This is called "personal service". If you personally serve the Statement of Claim on the defendant, then they have 20 days from the date you served them to file their Statement of Defence with the court.
The second way to serve your Statement of Claim is to mail it to the defendant's last known address. Service by mail can be done by registered mail or by regular mail. If you choose to serve your Statement of Claim by mail, the court will count the date of service as happening on the 20th day after you mailed the Statement of Claim. Then the defendant will have 20 days to file their Statement of Defence. Serving the defendant by mail may be more convenient, but it does take more time.
- Serving a business
If you want to deliver your Statement of Claim to a defendant which is a business, you can leave the Statement of Claim with anyone at the defendant's place of business who appears to be in control of the office. You may also serve the Statement of Claim on a business by registered or regular mail.
- Affidavit of service
Regardless of whether the defendant is a person or business, you must prove that you served the defendant with a Statement of Claim by filling out and filing a form called an Affidavit of Service. This form is available from the Small Claims Court. To fill out the Affidavit of Service, you will need to explain how you served the defendant and then sign it and swear that what you say is true in front of a commissioner of oaths, such as a lawyer or a notary public. Staff at the Small Claims Court may also be able to commission your affidavit.
If you have served the Statement of Claim in person, then you can complete and file your Affidavit of Service as soon as you have served the Statement of Claim.
If you have served the Statement of Claim by mail, then you must wait 20 days before completing the Affidavit of Service to ensure that the Statement of Claim has not been returned to you in the mail. If the Statement of Claim gets returned to you, it means that the defendant has not received it, and you will have to find another way to serve it.
- What to do if you cannot serve the defendant in the usual way
If you have tried to serve the defendant but you have been unsuccessful, you may ask a judge to let you serve the Statement of Claim another way. This is called making a motion for substituted service. To do this, you must complete a Notice of Motion and an Affidavit. You will need to explain why you were unable to serve the Statement of Claim, and how you want to deliver it. For example, you may want to serve it by posting it on a door or sending it by fax. You will need to swear that the Affidavit is true in front of a lawyer, notary public, or a staff member at the Small Claims Court office.
The staff at the Small Claims Court office will give your request to a judge to examine. If the judge needs to ask you any questions, the court office will give you a date to come back and see the judge. You may have to wait several days to get a decision from a judge. If the judge allows your request, you will get a signed order stating the different method of service that the judge is permitting and the time within which it must be served. You can then serve the defendant in the way the judge has allowed. You should also send the defendant a copy of the Order signed by the judge.
If you are uncertain about how to serve your Statement of Claim, the staff at the Small Claims Court may be able to help you. If you need legal advice or assistance, speak with a lawyer.
DEFENDING A LAWSUIT
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