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 process) can often be a tedious, onerous task, even for the best process servers and investigators. Service becomes even more complicated when a defendant is purposefully evasive.
If you are having trouble locating and serving a defendant, you may need to bring a motion to seek an order for substituted service, and may wish to have the claim substitutionally served upon their liability insurer. Rule 16.04 of the Rules of Civil Procedure deals with orders for substituted service and for dispensing with service.
Two 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. Master).
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(1) of the Rules of Civil Procedure permits the court to make an order for substituted service where it appears to the court that it is “impractical for any reason to effect prompt service of an originating process”. “Impractical” means “unable to be carried out or done”. Thus, in a motion under rule 16.04(1) there is an obligation upon counsel to show that he or she is unable to carry out prompt personal service. Mere difficulty in serving a defendant personally is not enough.
While rule 16.04(1) does not say that substituted service must bring home to a defendant knowledge of the action, substituted service cannot be intended merely as an artificial alternative to personal service. The form of substituted service must have a reasonable possibility of bringing the action to the attention of the defendant.
Justice Quinn goes on to comment on when an order dispensing with service is appropriate at paragraph 14 of his decision:
If the defendant will not learn of the action through substituted service then it strikes me as more appropriate to ask for an order dispensing with service altogether. In my view, substituted service is not available if the whereabouts of the defendant are unknown.
Justice Quinn goes on to comment on a further requirement before an order for substituted service can be made:
An undertaking by counsel for the plaintiff not to move 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 later 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 issues, 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 still agree not to oppose the motion and may even put in a defence on behalf the insured, but with conditions such as an order that the defence not be struck if they are unable to produce their insured for discovery.
In my view, if the plaintiff has made all reasonable efforts to locate and serve the defendant without success, it would be appropriate to order substituted service on the liability insurer, provided that such service was in addition to another method of service.
The second method of service could include mailing to the defendant’s last known address if there is a reasonable possibility of the mailed copy coming to the defendant’s attention, or by publication in two 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 evidence that the insurer provided liability coverage to the defendant on the date of the accident. This could be as simple as the insurer acknowledging in a letter that they insured the defendant on the material date.
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 will certainly set you off in the right direction.