Area of Law: Small Claims Court
Answer # 543
Serving a Plaintiff's ClaimRegion: Ontario Answer # 543
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 Plaintiff’s Claim to the defendant. This is known as serving the defendant. Once a Claim has been issued by the court, the plaintiff will have six months to serve it. You can serve the Plaintiff’s Claim personally or by an alternative to personal service. How a Claim can be served will depend on if the defendant is an individual or a business. Once a Claim is served, the defendant will have 20 days from the effective date of service to file a Defence.
Serving an individual
Personal Service: If the defendant is an individual, personal service means you or someone acting on your behalf (such as a process server, or friend) personally hands the Claim to the defendant. It is important that whoever is serving the document is certain that the person they are giving it to is, in fact, the defendant. If the defendant refuses to take the document, the person serving the document can simply leave it, even if it means leaving it on the ground.
Alternative to Personal Service: If the Claim cannot be served personally, you may serve it by:
- leaving a sealed copy with an adult at the defendant’s place of residence, and sending another copy to the person’s place of residence on the same day or the following day by regular mail, registered mail, or courier, or
- if the individual is represented by a lawyer or paralegal, then the Claim can be given to the legal representative, or one of their staff.
If you serve your Claim by regular mail, the court will count the date of service as happening on the fifth day after you mailed it. If the Claim is served by registered mail or by courier, you will need to provide proof of delivery. If the Claim was served by registered mail or courier, service will be considered effective on the date the Claim was signed for, proven by a receipt from Canada Post or the courier company.
Serving a business
Personal Service: If you want to deliver your Plaintiff’s Claim personally, to a defendant which is a business:
- if it is a sole proprietorship, you can give it to the sole proprietor,
- if it is a partnership, you can leave it with any of the partners,
- if it is a corporation, you can give it to an officer, director, or any other person authorized to act on behalf of the corporation.
In addition, for any of the forms of business, you can leave the Claim with a person at the place of business who appears to be in control or management of the place of business.
Alternative to Personal Service: If the head office, or principal place of business, or the corporation’s attorney for service cannot be found, alternative service may be made by:
- mailing or couriering the Claim to the corporation’s address, or to its attorney for service,
- mailing or couriering the Claim to each director of the corporation at the addresses registered with the Ministry, or
- if the business is represented by a lawyer or paralegal, then the Claim can be given to the legal representative, or one of their staff.
Affidavit of Service
Regardless of whether the defendant is a person or business, you must prove that you served the defendant with a Plaintiff’s Claim by completing and filing an Affidavit of Service. This form is available from the Small Claims Court. To fill out the Affidavit of Service, the person who served the document will need to explain how it was served, and then sign it and swear that what they said was true in front of a commissioner for taking affidavits, such as a lawyer or a notary public. Staff at the Small Claims Court may also be able to commission the Affidavit.
If you have served the Plaintiff’s Claim in person, then you can complete and file your Affidavit of Service as soon as you have served it. If you have served the Claim by registered mail or courier, you can file the Affidavit as soon as you have proof of delivery from Canada Post or the courier company.
If you have tried to serve the defendant but you have been unsuccessful, you may bring a motion to a judge to let you serve the Plaintiff’s Claim in an alternative way. This is called Substituted Service, and it means that the court may make an exception for you because of the difficulty you have had in serving the defendant. The provision allowing for substituted service ensures that Claims can still be served legally, when unusual circumstances exist.
You must receive permission from the court before you are allowed to serve a document this way.
You will need to complete a Notice of Motion and Supporting Affidavit. You will be required to explain why you were unable to serve the Plaintiff’s Claim, and how you propose to deliver it. For example, you may want to serve it by posting it on a door. You will need to swear that the statements you made in your Affidavit are true, in front of a commissioner for taking affidavits.
You may ask that your motion be made in writing or in person. If you want the motion heard in writing, the staff at the court office will give your request to a judge to examine. If you choose to bring your motion in person, ask court staff to provide you with a date and time that you can appear in Small Claims Court.
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. This may take several days. If you haven’t received anything within a week or two after the judge reviewed your motion, follow up with the court office. Once you have an order for Substituted Service, you can serve the defendant in the way the judge has allowed. You must also send the defendant a copy of the Order signed by the judge.
Substituted Service – using social media
Substituted service methods have continually been expanded over the years. Today, with the widespread use of social media, the Canadian courts are recognizing the use of social media as a means to effect service of documents. To increase the likelihood that your substituted service application will be granted, consider doing the following:
- demonstrate that traditional or usual methods of service and substituted service have been tried and failed,
- prove that the party to be served is, in fact, the account holder on the social media platform that you want to use,
- provide evidence that the party to be served uses the account regularly (e.g. frequent status updates, posts, or tweets); or that there has, in fact, been communication between the parties using the social media platform,
- try to use a social media platform that the court is familiar with,
- consider any restrictions, such as message length, and address them in your application,
- provide the party to be served with a clear method to access the documents and communicate with you.
When using social media to serve documents, it is important to not breach the privacy of the person you are suing by sharing sensitive information such as bank or credit card account numbers, Social Insurance Numbers, birth dates, etc.
If you are uncertain about how to serve your Plaintiff’s Claim, the staff at the Small Claims Court may be able to help you.
For more information about Small Claims Court in Ontario, visit the Ministry of the Attorney General.
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