Much Ado About Service. An introduction to Service Obligations

• Austin
  Leask

  Austin
  Leask

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One of the most foundational steps in litigation is “service”, which is the proper sharing of documents with other parties involved in an action. Good service ensures that parties are aware of what claims are being made against them so that they can properly respond. It’s a foundational step in procedural fairness and ensures that parties are not being caught off guard by the litigation process. Sometimes, if documents are not served properly, an entire claim can be delayed or face significant setbacks.

The rules around service can be daunting for self‑represented parties and may feel like an additional hurdle when seeking resolutions through the Alberta courts or the various administrative tribunals and regulatory bodies. This blog post is intended to be a starting point for self‑represented individuals who are unsure of where to begin when trying to understand their service obligations.

What Rules Apply

The starting point with service is understanding what rules apply. Some venues, such as the Alberta courts, have strict rules for service. Some administrative tribunals will handle the service for you, while others will have their own rules or policies that you must follow. For the Alberta trial courts, you’ll want to begin with the legislation that governs procedure. Currently, these are:

1. Court of King’s Bench of Alberta – Alberta Rules of Court.[1]
2. Alberta Court of Justice – Court of Justice Civil Procedure Regulation.[2]

With the courts, it’s important to consider what type of document you are serving. For example, in the Court of King’s Bench, the rules differ slightly between commencement documents (which are the documents that begin an action) and non‑commencement documents. It’s also important to note that the type of person you are serving may impact the steps. Serving a corporation is different than serving an individual, and some large organizations like banks and government bodies may have designated service addresses.

For administrative tribunals and bodies, such as the Alberta Human Rights Commission or the Residential Tenancy Dispute Resolution Service, you can review the legislation, regulations, and bylaws governing the body. However, often the easiest starting point is checking the administrative body’s website or calling their general inquiry line to ask how service is handled. Practices vary; some administrative bodies handle service for you while others will have rules and methods for service they expect you to follow, such as fax or email.

Once you’ve identified how the venue your matter is in requires service to be completed, that is the process you should follow.

What If You Can’t Satisfy the Rules?

It is not uncommon to be in a situation where you are unable to serve someone according to the applicable rules. People may avoid personal service or refuse to pick up registered mail, which can make the process even more frustrating. The rules governing our court processes recognize this issue. If you are unable to serve documents according to the rules in an action before the Alberta courts, you may need to apply for one of the following orders.  

Substitutional Service[3]

An order for substitutional service permits a party to serve someone in a manner not otherwise permitted by the rules of court. To receive this, you must make an application to the applicable level of court along with an affidavit in support that satisfies the court that:

1. Service as required by the rules is impractical;
2. There is an alternative method of service available; and
3. The alternative method of service you’re proposing is likely to bring the document to the attention of the person to be served.

While this sounds simple, it’s important to note that when the court assesses whether service is impractical, it doesn’t just mean inconvenient. For example, hiring a process server costs money, but the inconvenience of that fee is generally not enough to deviate from the rules.

In practice, the court needs to be satisfied that personal service, meaning service directly on a person named or involved in the court proceeding, is difficult. For example, if you hired a process server who attempted to serve a defendant personally and the defendant appears to be avoiding answering the door, that may make personal service impractical. You must then also show the court there is an alternative method of service and the alternative would likely bring the document to the defendant’s attention. If you have been communicating with the defendant by email, or you know they live at a specific address, an application supported by evidence from your process server that service is impractical and evidence that the defendant would likely see the documents by email or by posting them to the door may satisfy the court to grant a substitutional service order.

Validating Service[4]

Sometimes you may be able to get a document to the other party, but not in a manner contemplated by the rules. For example, you may give a statement of claim to the spouse of the defendant rather than the defendant personally. You can apply to the court to have that service validated. If the court is satisfied that your alternative method of service brought or ought to have brought the documents to the defendant’s attention, the court may grant an order stating that the service was acceptable even though it did not fully comply with the rules.

Dispensing with Service[5]

The rules permit a party to apply to dispense with service in a method prescribed by the rules if such service is impractical or impossible. This is a very high bar. You need to satisfy the court in an application that:

1. All reasonable efforts to serve the document have been exhausted or are impractical or impossible (practically, you must show that you’ve really tried);
2. The issue you have has little or no likelihood that it will be disputed; and
3. No other method of serving the document is or appears to be available.

Dispensing with service is very rare. Generally, if you can track down a person in some manner there are options to complete service through a substitutional service order.

Closing

Service can be complex and difficult. But it’s an essential step to ensure things go fairly. This blog post is just a starting point and is not a complete reproduction of all the various rules or situations that may change service requirements, and it should not be solely relied upon for navigating service. You should always check the applicable rules and see what steps apply to your specific circumstances. It’s also important to understand timelines for service and whether other interested parties who may not be directly tied to your issue need to be served.

If you are having difficulty navigating service, you can always seek legal advice as well as contact community resources intended to improve access to justice. The Law Society of Alberta has a list of approved legal service providers that may be able to assist you with pro bono legal services.[6]

[1] Alberta Rules of Court, Alta Reg 124/2010.

[2] Court of Justice Civil Procedure Regulation, Alta Reg 176/2018.

[3] Alberta Rules of Court, Alta Reg 124/2010, s 11.28.

[4] Alberta Rules of Court, Alta Reg 124/2010, s 11.27.

[5] Alberta Rules of Court, Alta Reg 124/2010, s 11.29.

[6] Approved Legal Services Providers for the Public – Law Society of Alberta