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This article was originally prepared for and published by the Rental Gazette Legal Corner
Service of legal documents is a widely known requirement that is not well understood. At its heart, the point of serving documents is to bring a legal proceeding to the attention of another party. Usually this means a respondent or defendant in a lawsuit.
Each province in Canada has the jurisdiction to determine how and when service in that province is effective. In Alberta, the Alberta Rules of Court set out detailed rules as to how and service will be considered effective as well as what can be done when this is difficult. In the context of residential tenancies, the Residential Tenancies Act (the “Act”) also speaks to the issue but does not override service for the purpose of the court. The comments in this article are confined to service under the Act. If you are addressing service of documents from the courts, you are urged to seek legal advice in regard to the options available to you if personal service cannot be effected.
Primary Attempts at Service
Now, the Act allows as a starting point that service either be effected personally or by registered mail.
Personal service involves handing the documents in question to the person who is either known to be or who you have verified to be the party to be served. This is one aspect of legal practice which can be said to be accurately portrayed by Hollywood – where one character asks the name of another before handing them a document stating “you’ve been served”. Note that it is not necessary for the person being served to be in the midst of performing a surgery or for the documents to be placed in a pizza box for good service —- these are details added for dramatic flair.
The Act also allows for service by registered mail. Registered mail has its place but also presents difficulties because it is costly and can easily be avoided by simply refusing to collect the registered letter. It can also take longer than, in my experience at least, these types of matters require.
Secondary Attempts at Service
The Act also allows that where a landlord is not able to give effect to service of a Notice to Vacate under either section 33 or 36 of the Act that posting to the door of the premises can be good service.
Similarly, the Act allows for service by electronic means but only where the Notices to Vacate under section 33 or 36 cannot be served personally or by registered mail. Electronic means result in a printed copy of the document to be received by an electronic device within the residential premises. What does this mean? That a fax has been successfully transmitted – it should be apparent that this means of service is likely of limited use. It should also be noted that the Residential Tenancies Dispute Resolution Service Regulation does not permit service by this means as good service for the purposes of that tribunal.
It is recommended that multiple attempts at personal service be undertaken before relying on a secondary attempt at service. This is because some decision makers will want to ensure an honest attempt at the other forms of service has been undertaken.
For example, as an alternative to personal service, it’s best practice to attend to the premises on a few different days, at a few different times of day before simply posting to the door. You can post to the door on each occasion but also return to try for personal service. Make notes as to how and where the notice was posted to the door as well as whether the notice remained on the door when subsequent attempts were undertaken. All of this information should form part of your Affidavit for Service. This is recommended because the Act allows alternative service but only when the landlord is not able to effectively service “by reason of the person’s absence from the premises or by reason of the person’s evading service”. It will be up to you to establish that these conditions were met.
Finally, it should be noted that when appearing before the RTDRS, the Residential Tenancies Dispute Resolution Service Regulation, provides that service must be proven to the satisfaction of the tenancy dispute officer in question and also that a tenancy dispute office can direct service in any manner. As such, it might be possible to service by means of email, but you will likely need an order in advance permitting service to a particular email and indicating how long after that email is sent that service will be considered effected. Otherwise, you will need to prove receipt of the email which can be difficult to do without a read receipt or reply response confirming receipt – as such you won’t want to rely on that unless absolutely necessary. If you do receive a reply confirming receipt of documents, then you can ask the tenancy dispute officer to accept such method as good service.
All in all, notwithstanding all the technology available to us, the gold standard for service remains.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.