The Originating Process

One of the first steps taken in any court procedure is service of the originating process. Whether the procedure is by action or application, service of the originating process puts parties and others who may be affected by the outcome on notice that a legal proceeding has started.

In estate litigation there may be a number of parties who need to be served at the outset of litigation. As a general rule, all beneficiaries or potential beneficiaries need to be served. This includes beneficiaries that are organizations like charitable institutions. Where there are minor beneficiaries, unascertained beneficiaries, or parties under disability, government offices like the Children’s Lawyer or the Public Guardian and Trustee may also need to be served.

Once everyone has been served with the originating process, the list of who needs to be served with any subsequent material may shrink depending on how many respondents file a notice of appearance.

Service of the Originating Process

Under Rule 16.01, an originating process needs to be served by personal service. The most straightforward version of this is having a process server personally deliver the originating process to a person or their representative, where appropriate (such as when the person is a corporation).

Sometimes it is inconvenient to serve a party in person, such as when a party lives in another country. In this case, the applicant may seek an order for substituted service. As set out in Rule 16.03, Substituted service can be effected one of three ways:

• Leaving a copy of the document the person’s lawyer or an employee in the lawyer’s office, if accepted by said lawyer or employee;
• Mailing a copy of the document with an acknowledgement of receipt card to the person’s last known place of residence, if the acknowledgement of receipt is returned; or
• Leaving a copy of the document at the person’s place of residence with an adult member of the same household.

However, in order for the court to grant an order permitting substituted service, they need to convince the court that the proposed method of substituted service will have “some likelihood” or a “reasonable possibility” of bringing the action or application to the attention of the party.[1] Another thing to note is that substituted service is not intended to spare the inconvenience, expense, or difficulty of personal service.[2]

Dispensing with Service

If it is unlikely that the party will learn of the legal proceeding through substituted service, it may be more appropriate to seek an order dispensing with service altogether.[3] An example of when this may be appropriate is where the whereabouts of a party are unknown.

That said, dispensing with service is a high bar to meet – under Rule 16.04, the court may make an order dispensing with service “where necessary in the interest of justice”.

The case of Ramnarine v. Marino, 2021 ONSC 5935 is a rare instance where the court granted an order dispensing with service, and serves as an example of the lengths a party will need to go to before the court will allow service to be dispense with. In that case, the plaintiff, Ramnarine, made extensive efforts to locate the defendant, Marino. In his search, Ramnarine:

• obtained an address from Ministry of Transportation records and attempted service at the address listed on file;
• searched phone directories and called potential listings;
• conducted searches for Marino on multiple social media websites and apps;
• obtained names of and tried to locate Marino’s family members in the hopes of eventually locating Marino himself; and
• hired multiple process servers to locate Marino.

The search itself also spanned two years. In its reasons, the court noted that there were other defendants who had been served, and that in order to advance the claim to the close of pleadings service against Marino needed to be dispensed (or the claim against him discontinued).

All this to say, the court will do what it can to make sure…you’ve been served!

[1] Chambers v. Muslim, 2007 CanLII 82791 (ON SC), at para 1.

[2] Ibid.

[3] Ibid.