SERVICE
RULE 16 SERVICE OF DOCUMENTS
GENERAL RULES FOR MANNER OF SERVICE
Originating Process
16.01 (1) An originating process shall be served personally as provided in rule 16.02 or, except in the case of a divorce petition, by an alternative to personal service as provided in rule 16.03.
(2) A party who has not been served with the originating process but delivers a defence, notice of intent to defend or notice of appearance shall be deemed to have been served with the originating process as of the date of delivery.
All Other Documents
(3) No other document need be served personally, or by an alternative to personal service, unless these rules or an order require personal service or an alternative to personal service.
(4) Any document that is not required to be served personally or by an alternative to personal service,
(a) shall be served on a party who has a solicitor of record by serving the solicitor, and service may be made in a manner provided in rule 16.05;
(b) may be served on a party acting in person or on a person who is not a party,
(i) by mailing a copy of the document to the last address for service provided by the party or person or, if no such address has been provided, to the party's or person's last known address, or
(ii) by personal service or by an alternative to personal service.
PERSONAL SERVICE
16.02 (1) Where a document is to be served personally, the service shall be made,
Individual
(a) on an individual, other than a person under disability, by leaving a copy of the document with the individual;
Municipality
(b) on a municipal corporation, by leaving a copy of the document with the chairman, mayor, warden or reeve of the municipality, with the clerk or deputy clerk of the municipality or with a solicitor for the municipality;
Corporation
(c) on any other corporation, by leaving a copy of the document 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 in control or management of the place of business;
Board or Commission
(d) on a board or commission, by leaving a copy of the document with a member or officer of the board or commission;
Person outside Ontario Carrying on Business in Ontario
(e) on a person outside Ontario who carries on business in Ontario, by leaving a copy of the document with anyone carrying on business in Ontario for the person;
Crown in Right of Canada
(f) on Her Majesty the Queen in right of Canada, in accordance with subsection 23 (2) of the Crown Liability Act (Canada);
Crown in Right of Ontario
(g) on Her Majesty the Queen in right of Ontario, in accordance with section 10 of the Proceedings Against the Crown Act;
Attorney General
(h) on the Attorney General of Ontario, by leaving a copy of the document with a solicitor in the Crown Law Office (Civil Law) of the Ministry of the Attorney General;
Absentee
(i) on an absentee, by leaving a copy of the document with the absentee's litigation guardian, if there is one, if not, with the Public Guardian and Trustee;
Minor
(j) on a minor, by leaving a copy of the document with the litigation guardian if one has been appointed or, if not, with the minor and, where the minor resides with a parent or other person having the care or lawful custody of the minor, by leaving another copy of the document with the parent or other person, but, where the proceeding is in respect of the minor's interest in an estate or trust, the minor shall be served by leaving with the Children's Lawyer a copy of the document bearing the name and address of the minor;
Mentally Incapable Person
(k) on a mentally incapable person,
(i) if there is a guardian or an attorney acting under a validated power of attorney for personal care with authority to act in the proceeding, by leaving a copy of the document with the guardian or attorney,
(ii) if there is no guardian or attorney acting under a validated power of attorney for personal care with authority to act in the proceeding but there is an attorney under a power of attorney with authority to act in the proceeding, by leaving a copy of the document with the attorney and leaving an additional copy with the person,
(iii) if there is neither a guardian nor an attorney with authority to act in the proceeding, by leaving a copy of the document bearing the person's name and address with the Public Guardian and Trustee and leaving an additional copy with the person;
(l) [Revoked O. Reg. 69/95, s. 6]
(m) on a partnership, by leaving a copy of the document with any one or more of the partners or with a person at the principal place of business of the partnership who appears to be in control or management of the place of business; and
Sole Proprietorship
(n) on a sole proprietorship, by leaving a copy of the document with the sole proprietor or with a person at the principal place of business of the sole proprietorship who appears to be in control or management of the place of business.
(2) A person effecting personal service of a document need not produce the original document or have it in his or her possession.
ALTERNATIVES TO PERSONAL SERVICE
Where Available
16.03 (1) Where these rules or an order of the court permit service by an alternative to personal service, service shall be made in accordance with this rule.
Acceptance of Service by Solicitor
(2) Service on a party who has a solicitor may be made by leaving a copy of the document with the solicitor or an employee in the solicitor's office, but service under this subrule is effective only if the solicitor endorses on the document or a copy of it an acceptance of service and the date of the acceptance.
(3) By accepting service the solicitor shall be deemed to represent to the court that the solicitor has the authority of his or her client to accept service.
Service by Mail to Last Known Address
(4) Service of a document may be made by sending a copy of the document together with an acknowledgment of receipt card (Form 16A) by mail to the last known address of the person to be served, but service by mail under this subrule is only effective as of the date the sender receives the card.
Service at Place of Residence
(5) Where an attempt is made to effect personal service at a person's place of residence and for any reason personal service cannot be effected, the document may be served by,
(a) leaving a copy, in a sealed envelope addressed to the person, at the place of residence with anyone who appears to be an adult member of the same household; and
(b) on the same day or the following day mailing another copy of the document to the person at the place of residence,.
and service in this manner is effective on the fifth day after the document is mailed.
Service on a Corporation
(6) Where the head office, registered office or principal place of business of a corporation or, in the case of an extra-provincial corporation, the attorney for service in Ontario cannot be found at the last address recorded with the Ministry of Consumer and Commercial Relations, service may be made on the corporation by mailing a copy of the document to the corporation or to the attorney for service in Ontario, as the case may be, at that address.
SUBSTITUTED SERVICE OR DISPENSING WITH SERVICE
Where Order May be Made
16.04 (1) Where it appears to the court that it is impractical for any reason to effect prompt service of an originating process or any other document required to be served personally or by an alternative to personal service under these rules, the court may make an order for substituted service or, where necessary in the interest of justice, may dispense with service.
Effective Date of Service
(2) In an order for substituted service, the court shall specify when service in accordance with the order is effective.
(3) Where an order is made dispensing with service of a document, the document shall be deemed to have been served on the date of the order for the purpose of the computation of time under these rules.
SERVICE ON SOLICITOR OF RECORD
16.05 (1) Service of a document on the solicitor of record of a party may be made,
(a) by mailing a copy to the solicitor's office;
(b) by leaving a copy with a solicitor or employee in the solicitor's office;
(c) by depositing a copy at a document exchange of which the solicitor is a member or subscriber, but service under this clause is effective only if the document or a copy of it and the copy deposited are date stamped by the document exchange in the presence of the person depositing the copy;
(d) by faxing a copy to the solicitor's office in accordance with subrules (3), (3.1) and (3.2), but where service is made under this clause between 4 p.m. and midnight it shall be deemed to have been made on the following day; or
(e) by sending a copy to the solicitor's office by courier; or,
(f) by e-mailing a copy the solicitor's office in accordance with subrule (4) but service service under this rule is effective only if the solicitor of record provides by e-mail an acceptance of service and the date of acceptance, and where e-mail acceptance is received between 4 p.m. and midnight, service shall be deemed to have been made on the following day
(2) Service of a document by depositing a copy at the document exchange under clause (1)(c) is effective on the day following the day on which it 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.
(2.1) Service of a document by sending a copy by courier under clause (1)(e) 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.
(3) A document that is served by fax shall include a cover page indicating,
(a) the sender's name, address and telephone number;
(b) the name of the solicitor to be served;
(c) the date and time of transmission;
(d) the total number of pages transmitted, including the cover page;
(e) the fax number of the sender; and
(f) the name and telephone number of a person to contact in the event of transmission problems.
Telephone Transmission of Certain Documents
(3.1) A document of 16 pages or more inclusive of the cover page and the backsheet may be served by fax only between 4 p.m. and 8 a.m. the following day, unless the party to be served gives prior consent.
(3.2) A motion record, application record, trial record, appeal book and compendium or book of authorities may not be served by fax at any time unless the party to be served gives prior consent.
E-mail, Required Information
(4) The e-mail message to which a document served under clause (1)(1) is
attached shall include,
(a) the sender's name, address, telephone number, fax number and e-mail address;
(b) the date and time of transmission; and
(c) the name and telephone number of a person to contact in the event of transmission problems.
SERVICE BY MAIL
Manner of Service
16.06 (1) Where a document is to be served by mail under these rules, a copy of the document shall be served by regular lettermail or by registered mail.
Effective Date
(2) Service of a document by mail, except under subrule 16.03(4), is effective on the fifth day after the document is mailed but the document may be filed with proof of service before service becomes effective.
WHERE DOCUMENT DOES NOT REACH PERSON SERVED
16.07 Even though a person has been served with a document in accordance with these rules, the person may show on a motion to set aside the consequences of default, for an extension of time or in support of a request for an adjournment, that the document,
(a) did not come to the person's notice; or
(b) came to the person's notice only at some time later than when it was served or is deemed to have been served.
VALIDATING SERVICE
16.08 Where a document has been served in a manner other than one authorized by these rules or an order, the court may make an order validating the service where the court is satisfied that,
(a) the document came to the notice of the person to be served; or
(b) the document was served in such a manner that it would have come to the notice of the person to be served, except for the person's own attempts to evade service.
PROOF OF SERVICE
Affidavit of Service
16.09 (1) Service of a document may be proved by an affidavit of the person who served it (Form 16B).
Sheriff's Certificate
(2) Personal service or service under subrule 16.03(5) (service at place of residence) of a document by a sheriff or sheriff s officer may be proved by a certificate of service (Form 16C).
Solicitor's Admission or Acceptance
(3) A solicitor's written admission or acceptance of service is sufficient proof of service and need not be verified by affidavit.
Document Exchange
(4) Service of a document under clause 16.05(l)(c) (document exchange) may be proved by the date stamp on the document or a copy of it.
Proof of Service on Document
(5) The affidavit or certificate of service may be printed on the backsheet or on a stamp or sticker affixed to the backsheet of the document served.
(6) Service of a document under clause 16.05(1)(f) (e-mail) may be proved by a certificate of service of the person who served the document stating that he or she,
(a) served the document by e-mailing a copy in accordance with subrule
(4) and received by e-mail an acceptance of service, with the date and
time of the acceptance;
(b) has sworn an affidavit of service containing the particulars set out in the certificate of service;
(c) has kept the affidavit of service; and
(d) will, on the request of the court or a party, produce the affidavit of service.
RULE 17 SERVICE OUTSIDE ONTARIO
DEFINITION
17.01 In rules 17.02 to 17.06, "originating process" includes a counterclaim against only parties to the main action, and a crossclaim.
SERVICE OUTSIDE ONTARIO WITHOUT LEAVE
17.02 A party to a proceeding may, without a court order, be served outside Ontario with an originating process or notice of a reference where the proceeding against the party consists of a claim or claims,
Property in Ontario
(a) in respect of real or personal property in Ontario;
Administration of Estates
(b) in respect of the administration of the estate of a deceased person,
(i) in respect of real property in Ontario, or
(ii) in respect of personal property, where the deceased person, at the time of death, was resident in Ontario;
Interpretation of an Instrument
(c) for the interpretation, rectification, enforcement or setting aside of a deed, will, contract or other instrument in respect of,
(i) real or personal property in Ontario, or
(ii) the personal property of a deceased person who, at the time of death, was resident in Ontario;
Trustee Where Assets Include Property in Ontario
(d) against a trustee in respect of the execution of a trust contained in a written instrument where the assets of the trust include real or personal property in Ontario;
Mortgage on Property in Ontario
(e) for foreclosure, sale, payment, possession or redemption in respect of a mortgage, charge or lien on real or personal property in Ontario;
Contracts
(f) in respect of a contract where,
(i) the contract was made in Ontario,
(ii) the contract provides that it is to be governed by or interpreted in accordance with the law of Ontario,
(iii) the parties to the contract have agreed that the courts of Ontario are to have jurisdiction over legal proceedings in respect of the contract, or
(iv) a breach of the contract has been committed in Ontario, even though the breach was preceded or accompanied by a breach outside Ontario that rendered impossible the performance of the part of the contract that ought to have been performed in Ontario;
Tort Committed in Ontario
(g) in respect of a tort committed in Ontario;
Damage Sustained in Ontario
(h) in respect of damage sustained in Ontario arising from a tort or breach of contract, wherever committed;
Injunctions
(i) for an injunction ordering a party to do, or refrain from doing, anything in Ontario or affecting real or personal property in Ontario;
Support
(j) for support;
Custody or Access
(k) for custody of or access to a minor;
Invalidity of Marriage
(l) to declare the invalidity of a marriage;
Judgment of Court Outside Ontario
(m) on a judgment of a court outside Ontario;
Authorized by Statute
(n) authorized by statute to be made against a person outside Ontario by a proceeding commenced in Ontario;
Necessary or Proper Party
(o) against a person outside Ontario who is a necessary or proper party to a proceeding properly brought against another person served in Ontario;
Person Resident or Carrying on Business in Ontario
(p) against a person ordinarily resident or carrying on business in Ontario;
Counterclaim, Crossclaim or Third Party Claim
(q) properly the subject matter of a counterclaim, crossclaim or third or subsequent party claim under these rules; or
Taxes
(r) made by or on behalf of the Crown or a municipal corporation to recover money owing for taxes or other debts due to the Crown or the municipality.
SERVICE OUTSIDE ONTARIO WITH LEAVE
17.03 (1) In any case to which rule 17.02 does not apply, the court may grant leave to serve an originating process or notice of a reference outside Ontario.
(2) A motion for leave to serve a party outside Ontario may be made without notice, and shall be supported by an affidavit or other evidence showing in which place or country the person is or probably may be found, and the grounds on which the motion is made.
ADDITIONAL REQUIREMENTS FOR SERVICE OUTSIDE ONTARIO
17.04 (1) An originating process served outside Ontario without leave shall disclose the facts and specifically refer to the provision of rule 17.02 relied on in support of such service.
(2) Where an originating process is served outside Ontario with leave of the court, the originating process shall be served together with the order granting leave and any affidavit or other evidence used to obtain the order.
MANNER OF SERVICE OUTSIDE ONTARIO
Definitions
17.05 (1) In this rule,
"contracting state" means a contracting state under the Convention; ("État contractant")
"Convention" means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters signed at The Hague on November 15, 1965. ("Convention")
General Manner of Service
(2) An originating process or other document to be served outside Ontario in a jurisdiction that is not a contracting state may be served in the manner provided by these rules for service in Ontario, or in the manner provided by the law of the jurisdiction where service is made, if service made in that manner could reasonably be expected to come to the notice of the person to be served.
Manner of Service in Convention States
(3) An originating process or other document to be served outside Ontario in a contracting state shall be served
(a) through the central authority in the contracting state; or
(b) in a manner that is permitted by Article 10 of the Convention and that would be permitted by these rules if the document were being served in Ontario.
Proof of Service
(4) Service may be proved,
(a) in the manner provided by these rules for proof of service in Ontario;
(b) in the manner provided by the law of the jurisdiction where service is made; or
(c) in accordance with the Convention, if service is made in a contracting state (Forms 17A to 17C).
MOTION TO SET ASIDE SERVICE OUTSIDE ONTARIO
17.06 (1) A party who has been served with an originating process outside Ontario may move, before delivering a defence, notice of intent to defend or notice of appearance,
(a) for an order setting aside the service and any order that authorized the service; or
(b) for an order staying the proceeding.
(2) The court may make an order under subrule (1) or such other order as is just where it is satisfied,
(a) service outside Ontario is not authorized by these rules;
(b) an order granting leave to serve outside Ontario should be set aside; or
(c) Ontario is not a convenient forum for the hearing of the proceeding,
(3) Where on a motion under subrule (1) the court concludes that service outside Ontario is not authorized by these rules, but the case is one in which it would have been appropriate to grant leave to serve outside Ontario under rule 17.03, the court may make an order validating the service.
(4) The making of a motion under subrule (1) is not in itself a submission to the jurisdiction of the court over the moving party.
RULE 18 TIME FOR DELIVERY OF STATEMENT OF DEFENCE
TIME FOR DELIVERY OF STATEMENT OF DEFENCE
18.01 Except as provided in rule 18.02 or subrule 19.01(5) (late delivery of defence) or 27.04(2) (counterclaim against plaintiff and non-party).A statement of defence (Form 18A) shall be delivered,
(a) within twenty days after service of the statement of claim, where the defendant is served in Ontario;
(b) within forty days after service of the statement of claim, where the defendant is served elsewhere in Canada or in the United States of America; or
(c) within sixty days after service of the statement of claim, where the defendant is served anywhere else,
NOTICE OF INTENT TO DEFEND
18.02 (1) A defendant who is served with a statement of claim and intends to defend the action may deliver a notice of intent to defend (Form 18B) within the time prescribed for delivery of a statement of defence.
(2) A defendant who delivers a notice of intent to defend within the prescribed time is entitled to ten days, in addition to the time prescribed by rule 18.01, within which to deliver a statement of defence.
(3) Subrules (1) and (2) apply, with necessary modifications, to
(a) a defendant to a counterclaim who is not already a party to the main action and who has been served with a statement of defence and counterclaim; and
(b) a third party who has been served with a third party claim.