Part one: Service of documents
When to serve documents in a Divisional Court appeal
It is important to pay attention when the Rules say that you must “serve and file” or “deliver” a document. The order of steps is important. You must first serve the documents before filing them. Where a document must be served and then filed, court office staff cannot accept the document unless it has already been properly served.
If there is more than one party being served, each party must be served with their own copy of the document being served. For example, if you are serving two parties at the same address and you are using the “mail” option, you must send a copy of the document to each party in a separate addressed, sealed envelope.
If a party does not receive a document or receives it late
If a party does not receive a document that was supposed to have been served on them under the rules, or receives it after the timeframe allowed under the rules, the party can bring a motion to ask the court for the order they need in the circumstances. For example, if you took steps against that party before they were properly served with related documents, that party might ask for the steps you took against them to be set aside. As other examples, a party who was not properly served in time might ask for an extension of time for the steps they are required to complete or they may ask for an adjournment of the hearing.
How to serve documents in a Divisional Court appeal
If the party you are serving has a lawyer of record (meaning a lawyer that is representing the party at court in your proceeding), your documents must be served on that lawyer, not on the party.
Under the rules, there are three categories of documents for the purposes of service:
- documents that must be served “personally” (also called “personal service”)
- documents that must be served either personally or with an “alternative to personal service”
- all other documents
In Divisional Court appeals, the documents that are generally required to be served fall into the third category. Documents in this category can be served in a variety of methods. Often, these methods are simpler than using personal service or an alternative to personal service.
If personal service or an alternative to personal service are not required, you can serve documents on another party (or their lawyer, if they have one) by e-mail. The e-mail message that you send with the documents attached must include your name, address, telephone number and e-mail address, the date and time of transmission, and the name and telephone number of a person to contact if there is a transmission problem with the e-mail or its attachments. If you serve a document by e-mail after 4 p.m. or on a weekend or holiday, service will be considered effective on the next business day.
For documents that do not need to be served personally or with an alternative to personal service, you can also mail your documents to the party (or their lawyer, if they have one) at the last address for service they provided. If no address has been provided, you can mail your documents to their last known address. You can use either registered mail or regular letter mail. Important: if you serve documents by mail, service is considered to have taken effect on the fifth day after you mail the documents (note: weekends and holidays are not included in the count of five days). This means that if you are going to serve a party by mail, you must do so at least five days before the expiry of any applicable deadline.
In addition, you can serve a party’s lawyer (but not the party themselves) by courier if the document doesn’t need to be served personally or by an alternative to personal service. A courier document is considered to be served two days after the day you gave the document to the courier. If the second day is a weekend or holiday, then service is effective on the next business day.
For all documents, you can use personal service. Personal service means that you arrange for someone to hand your documents directly to the party. This method can be a good way to ensure that your documents are received. The requirements for personal service and alternatives to personal service are described in Rule 16.02 and 16.03. In limited circumstances, outlined in Rule 16.04, the court may make an order for substituted service or may dispense with service.
Serving documents in a Divisional Court appeal by personal service
If you want to serve your documents by personal service, the Rules have different requirements on how this can be done, depending on who you are serving. The chart below provides a quick overview, as well as references to individual rules you can refer to for further detail.
You can perform personal service yourself, or you can ask someone else to do it for you (for example, a friend or family member). You can also hire a private company to serve documents for you. These companies are called “process servers”.
| Person being served | Personal service requirement | Rule |
|---|---|---|
| Individual (other than a person under disability) | By leaving a copy with the individual. Note: If you try to arrange to have someone be served personally at their place of residence and the person performing service is unable to hand them your document, the document can be left in a sealed envelope addressed to the person with anyone who appears to be an adult member of the same household. On the same day or the following day, you must mail another copy of the document to the person at their place of residence. Service is considered effective on the fifth day after you mail the document. See Rule 16.03(5) for more information. | 16.02(1)(a) |
| Municipality | By leaving a copy with the chair, mayor, warden or reeve of the municipality, or a clerk, deputy clerk or lawyer for the municipality. | 16.02(1)(b) |
| Corporation | By leaving a copy with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be control or management of the place of business. | 16.02(1)(c) |
| Board or commission | By leaving a copy with a member or officer of the board or commission. | 16.02(1)(d) |
| Person outside Ontario carrying on business in Ontario | By leaving a copy with anyone carrying on business in Ontario for the person. | 16.02(1)(e) |
| Crown in right of Canada | On Her Majesty the Queen in right of Canada, pursuant to s. 23(2) of the Crown Liability and Proceedings Act (Canada). | 16.02(1)(f) |
| Crown in right of Ontario | On an employee of the Crown Law Office (Civil Law) of the Ministry of the Attorney General, pursuant to s. 15 of the Crown Liability and Proceedings Act, 2019. | |
| Attorney General of Ontario | By leaving a copy with an employee of the Crown Law Office (Civil Law) of the Ministry the Attorney General. | 16.02(1)(h) |
| Absentee | By leaving a copy with the absentee' s litigation guardian if there is one, or if not, with the Public Guardian and Trustee. | 16.02(1)(i) |
| Minor | By leaving a copy with the litigation guardian if one has been appointed, or if not, with the minor. Where the minor resides with a parent or other person having the care or lawful custody of the minor, another copy must be left with the parent or the other person. Where a proceeding is in respect of the minor's interest in an estate or trust, by leaving a copy bearing the name and address of the minor with the Children’s Lawyer. | 16.02(1)(j) |
| Mentally incapable person | By leaving a copy with a guardian or attorney if there is one acting under a validated power of attorney for personal care with authority to act in the proceeding. If there is no such guardian or attorney, by leaving a copy with an attorney under power of attorney with authority to act in the proceeding and leaving an additional copy with the person. If there is no such attorney or guardian, by leaving a copy bearing the person’s name and address with the Public Guardian and Trustee and an additional copy with the person. | 16.02(1)(k) |
| Partnership | By leaving a copy with one or more of the partners or a person at the principal place of business who appears to be control or management of the place of business. | 16.02(1)(m) |
| Sole proprietorship | By leaving a copy with the sole proprietor or a person at the principal place of business who appears to be in control or management of the place of business. | 16.02(1)(n) |
Serving a lawyer of record
First, call the lawyer’s office or otherwise confirm that the lawyer is still representing the party. If that is the case, you may serve the lawyer by any of the methods listed below:
| Method of service | Special considerations | Rule |
|---|---|---|
| Mailing a copy to the lawyer’s office | Service is effective on the fifth day after the document is mailed. | 16.05(1)(a) |
| Leaving a copy with the lawyer or an employee in the lawyer’s office | Service on a party who has a lawyer may be made by leaving a copy of the document with the lawyer or an employee in the lawyer’s office. | 16.05(1)(b) |
| Depositing a copy at a document exchange of which the lawyer is a member or subscriber | Service is effective only if a copy of the document and the copy deposited are date stamped by the document exchange in the presence of the person depositing the copy. Service is effective on the day following the day on which the document was deposited and date stamped, unless that following day is a holiday, in which case service is effective on the next day that is not a holiday. | 16.05(1)(c) |
| By use of an electronic document exchange of which the lawyer is a member or subscriber | Where service is made between 4 p.m. and midnight, it is deemed to have been made on the following day. | 16.05(1)(c.1) |
| Sending a copy to the lawyer’s office by courier | Service is effective on the second day following the day the courier was given the document, unless that second day is a holiday, in which case service is effective on the next day that is not a holiday. | 16.05(1)(e) |
| Emailing a copy to the lawyer | The copy must be e-mailed to the last e-mail address for service provided by the lawyer, or if not provided, to the lawyer’s last known e-mail address. Where service is made between 4 p.m. and midnight, it is considered to have been made on the following business day. | 16.05(1)(f) |