A lot of paperwork is involved in most court cases, and it is important that copies of documents get to everyone who needs them.
"Serving" documents means providing copies of documents to all other parties in a court case. Documents must be served at each step in the court process, unless the Rules of the Small Claims Court (after this, referred to as the Rules) provide otherwise. By serving the other parties, you are notifying them of the step you are taking and of the information you will be presenting to the court, and giving them an opportunity to respond.
The Rules have specific requirements about service of documents. The Rules describe which party must serve a document, how service should be made, how particular kinds of entities (such as corporations or government) may be served, and the timelines for service.
Whether you are serving a Plaintiff’s Claim [Form 7A] or Defendant’s Claim [Form 10A], or serving other documents (for example, a Notice of Garnishment [Form 20E] or Notice of Motion and Supporting Affidavit [Form 15A]) this guide will attempt to help you understand the importance of serving the documents properly (as set out in the Rules) and answer some general questions about serving documents.
In Small Claims Court, parties arrange for service of their own documents. You can:
The person serving the documents should make careful, detailed notes regarding the name of the person served, the date, time, and manner of service made, and any other related details. This will assist later when the person prepares an affidavit of service. An affidavit of service is a sworn or affirmed statement that tells the court who was served, and when and how service was made.
A claim is the first official notice of the case that the defendant (the person you are suing) will have. For this reason, there are special requirements for serving the claim in the Rules. The Rules provide for several specific types of service of a claim. How you serve the claim, and on whom, depends on what type of defendant is being sued (for example, whether the defendant is a person or a company).
Plaintiff’s or Defendant’s Claim
8.01(1) A plaintiff’s claim or defendant’s claim (Form 7A or 10A) shall be served personally as provided in rule 8.02 or by an alternative to personal service as provided in rule 8.03.
A plaintiff’s claim and defendant’s claim must be served on the defendant within six months after the date the claim is issued by the court. If there is more than one defendant in the case, all defendants must be served within this timeframe.
A plaintiff can file a motion to request an order to extend the time for service. You must explain to the judge why you were not able to serve the claim within the six months.
Time for Service of Claim
8.01(2) A claim shall be served within six months after the date it is issued, but the court may extend the time for service, before or after the six months has elapsed.
Refer to “Motions and clerk’s orders” for more information on making a motion.
If the person you are suing normally lives in Ontario but is away (for example, working on a job in Montreal), you can serve the claim on the person in Montreal just as you would if he or she were in Ontario.
If the person lives or carries on business outside of Ontario, you could serve your claim on the person outside of Ontario just as you would if he or she lived or carried on business in Ontario. If you request it, the court may award additional costs to you to cover any extra expense involved in serving the claim outside Ontario.
When you try to serve your claim, you might find that the party has moved and you cannot find a forwarding address. You might believe that the party knows you are trying to serve the claim and is avoiding you. In either case, you may file a motion to seek an order for substituted service under Rule 8.04. The method ordered by the court is substituted for the method(s) of service allowed for that particular document and on that particular party in the Rules.
Substituted Service
8.04 If it is shown that it is impractical to effect prompt service of a claim personally or by an alternative to personal service, the court may allow substituted service.
For more information about making a motion, refer to “Motions and clerk’s orders.”
The judge will decide what kind of substituted service will be permitted. Examples of substituted service you might request are:
Before asking for an order for substituted service, you should already have tried several times to serve the document by the method or methods provided by the Rules. Be prepared to give details of how you tried to serve the claim, what happened and why the method of service you are asking for will succeed.
Meera wants to serve Norman with a plaintiff’s claim but she cannot find him. She makes a motion for substituted service requesting that the judge make an order allowing her to serve him by giving a copy (in an envelope addressed to Norman) to his mother.
In her affidavit, Meera writes that:
If the court makes an order allowing substituted service, you must serve on the party:
In Small Claims Court, an order made by a judge is generally set out in an endorsement record. An endorsement record is the official document that records the judgment or court order.
A defence is your answer to the claim. The Rules provide for several types of service of a defence. How you serve the defence, and on whom, depends on what type of plaintiff is suing you (for example, whether the plaintiff is a person or a company).
You have 20 calendar days from the date you were served with the claim to serve and file your defence. After 20 days, the plaintiff can have you noted in default. After the 20 days have passed, you may still try to serve and file your defence. The court office will accept your defence for filing as long as the plaintiff has not filed a request to note you in default.
The court office will accept your defence for filing as long as the plaintiff has not filed a request to note you in default. If you have been noted in default, the Rules provide that you cannot file a defence or take any other step in the proceeding, except making a motion to set aside the noting of default, without leave of the court or the plaintiff's consent.
Refer to “Replying to a claim” for more information on setting aside a noting in default.
To serve a document by means of personal service, you, or someone acting on your behalf, will hand the document to the party (for example, the defendant). The person serving the document must first be satisfied that the person being handed the document is in fact the party. If the party refuses to take the document, you can drop it on the floor at his or her feet. The person who serves the document would note this in his or her affidavit of service because it is a related detail.
If you are unable to serve a document by means of personal service, you may choose an “alternative to personal service.” This means that you are choosing another method of service ( e.g. at place of residence) permitted by the Rules . See Rule 8.03 below.
One example of an alternative to personal service is provided in Rule 8.03(2)(a) (service at place of residence), which allows you to serve a document in a sealed envelope addressed to the individual at his or her residence by leaving a copy with an adult member of the same household. You must also, on the same day or the following day, mail or send by courier another copy of the document to the individual at the place of residence. Service is effective on the fifth day after the document is mailed or verified by courier that it was delivered.
Meera wants to serve Norman with a plaintiff’s claim. She knows where he lives and goes in person to his house to deliver the claim to him. In case Norman is not home, she puts the claim in a sealed envelope addressed to Norman.
When Meera knocks on Norman’s door a woman answers. Meera asks if Norman is home, but the woman says no. Meera then asks the woman what her name is and if she lives there. The woman says, “I’m Susan Long and yes, I live here.” The woman appears to be at least 18 years of age.
Meera hands the envelope containing the claim to Susan. Meera then mails another copy of the document to Norman at his home. Meera makes a note of Susan’s name for her affidavit of service.
If Susan had refused to provide her name or say whether or not she lived at Norman’s house, Meera could still leave a copy of the claim with her as long as Susan appeared to be a resident of Norman’s household and at least 18 years of age.
In another example of an alternative to personal service, Rule 8.03(7) provides that a claim can be served by registered mail or courier if the signature of the individual or any person who appears to be a member of the same household, verifying receipt of the copy, is obtained. Rule 8.03(8) provides that service is effective on the day on which receipt of the copy of the claim is verified by signature as shown on the delivery confirmation provided by Canada Post or the commercial courier.
Meera wants to serve Norman with a plaintiff’s claim. She goes to his house several times to serve it, but no one answers the door. Meera does not know of any other way to contact Norman to find him. She believes Norman lives there because he responded to mail she sent there before.
Meera mails the claim to Norman by registered mail. On the day Norman or his spouse signs for the document, Meera prints off the delivery confirmation including the signature verifying the receipt from the Canada Post website. Meera includes the delivery confirmation with her Affidavit of Service [Form 8A].
If Meera had sent the claim to Norman by courier, she would include the delivery confirmation with signature provided by the commercial courier company when filing her Affidavit of Service [Form 8A].
The Rules must be followed when serving court documents. In some cases it is the clerk of the court who will serve documents by mail. However, in most cases it is the party’s responsibility to serve his or her own documents on the other parties.
The person making service will provide the party (by whatever method of service being used) with a copy of the document. If there is more than one party being served, each party must be served with his or her own copy of the document being served. For example, if you are serving two parties at the same address by mail or by courier, you must send a copy of the document to each party in separate addressed, sealed envelopes. Complete an Affidavit of Service [Form 8A] for each party.
If personal service is not required under the Rules, often service of documents will be fairly simple - either sending it by mail or by courier, dropping it off at an office, or having someone serve it for you.
Sometimes distance makes it inconvenient or impossible for you to serve your own documents. Sometimes it may be an awkward or a potentially confrontational situation. If sending the document by mail or by courier is not allowed under the Rules, there are professional process servers who will serve the document for you for a fee. You can get the name of a process server from the yellow pages. A lawyer or paralegal may also be able to recommend a suitable agency.
You could also ask a friend to serve a document for you. If the party you are serving is in another town, you might be able to mail it to a friend there and have him or her serve it for you.
Remember, you will have to file with the court an Affidavit of Service [Form 8A] that is signed and sworn or affirmed by the person who has served the document.
If you are successful in your claim, you may be entitled to recover some costs. Refer to “Getting ready for court ” for more information.
If you served the document by mail or courier and you wish to recover the costs, you must provide the court office with a receipt showing what you paid.
If you hired someone to serve the document for you, you must provide the court office with a detailed invoice or statement setting out the amount paid to have the document served. You can ask for a maximum of $60 per person to be served regardless of the amount paid or number of attempts made to serve the document, unless the court orders otherwise [Rule 19.01(3)].
It is up to you to be sure that the court and the other parties in the case always have your proper address so that they can serve documents on you. If your address changes, you must serve written notice of the change on the court and other parties within seven days after the change takes place. Make detailed notes of when and how you served your new address on each party and the court. The court may require an affidavit of service at some future time, so you will need to keep a record of these details.
If you do not advise the court and the other parties of your change of address, they are entitled to serve you with documents at your old address. That will mean you are not fully informed about what is happening in your case. Orders may be made without your knowledge and in your absence.
If you are represented in your case (for example, by a lawyer or paralegal), they must advise the court of your address, telephone number and email address if they stop representing you before the case is over.
If a party did not receive a document that was supposed to have been served on him or her under the Rules, or received it after the timeframe allowed under the Rules, the party can bring a motion to the court for the order he or she needs in the circumstances.
For example, where a defendant does not receive the claim but receives a default judgment from the court, he or she may wish to bring a motion to set aside the default judgment and extend the time to file a defence. In another example, if a party received a notice of motion less than 7 days
before the hearing date, he or she may request an adjournment of the motion in order to have more time to prepare. For more information, refer to “Motions and clerk’s orders .”
A party under “legal disability” means:
If a party in an action is a party under legal disability, then he or she must have a litigation guardian. Documents can be served on the party by serving the person named as the litigation guardian.
A minor (a person under the age of 18) may sue someone for any sum up to $500 without requiring a litigation guardian. A minor who is a plaintiff in an action up to $500 can be served in the same way as an adult.
Rule 8.01 and the chart in this guide can help you determine whether the document you want to serve can be served by mail. If it can, then the document is considered to be served on the 5th day following the date of mailing.
However, if you served the claim on the defendant by an alternative to personal service by registered mail or courier, you need the signature of the individual, or any person who appears to be a member of the same household, verifying receipt before service is effective. See Part Two of this guide for more information on service of a claim.
You cannot file your affidavit of service until after the date the document is deemed to be served.
Regular mail includes postal services provided by Canada Post, including Priority and Xpresspost, unless otherwise ordered by a judge.
Rule 8.01 and the chart in this guide can help you determine whether the document you want to serve can be served by courier. If it can, then the document is considered to be served on the 5th day following the date on which the courier verifies to the sender that the document was delivered.
However, if you served the claim by an alternative to personal service by having it couriered to the defendant, it is considered to be served on the day the signature verifying receipt of the claim was received. See Part Two of this guide for more information on service of a claim by courier.
You cannot file your affidavit of service until after the date the document is deemed to be served.
Service by Courier
8.07.1 (1) If a document is to be served by courier under these rules, it shall be sent by means of a commercial courier to the last address of the person or of the person’s representative that is on file with the court or known to the sender.
(2) Service of a document sent by courier is deemed to be effective on the fifth day following the date on which the courier verifies to the sender that the document was delivered.
(3) This rule does not apply when a claim is served by courier under subrule 8.03(7).
Rule 8.08 and the chart in this guide can help you determine whether the document you want to serve can be served by email. If it can, then the document is normally considered to be served on the day the email is sent. However, if the document is sent between 4 p.m. and midnight or on a Saturday, a Sunday, or a holiday, then it is considered to be served on the next day that is not a Saturday, Sunday, or holiday.
Unless specified otherwise in the rules, you can email a document to a party or their representative to the last email address they gave you or if this email address was not provided, then their last known email address. You can also email the document to the email address listed for a party’s lawyer or paralegal in the Lawyer and Paralegal Directory found on the Law Society of Ontario website.
When you are serving by email, your email must include
The person who served the document must fill out an Affidavit of Service [Form 8A] setting out who was served, and when and how service was made. Generally, you are not required to file the affidavit of service with the court until you are ready to proceed with your next step, or a judge orders that it must be filed. For example, if you want to ask the clerk to note the defendant in default, you would file your affidavit of service of the claim at the time you make the request.
If a copy of a document has been served on more than one person, then you would need to complete an affidavit of service for each person served.
If you have a paralegal or lawyer, they can use a Certificate of Service [Form 8B] instead of an Affidavit of Service to prove that they served a document or arranged for it to be served. Only paralegals and lawyers are allowed to use a Certificate of Service.
Do not sign the affidavit before going to the commissioner or get anyone else to sign it. If someone else served your documents, they must go to the commissioner and both sign and swear or affirm the affidavit in front of the commissioner. For more information about swearing affidavits, see “ Tips on completing forms in Small Claims Court”.
It is a criminal offence to swear or affirm an affidavit you know is false.
If the defendant fails to serve and file a defence within 20 days of being served with the claim, you can ask the clerk to note the defendant in default. When calculating the 20-day time period, count the number of days following the date that service was effective by excluding the first day and including the last day. If the last day falls on a Saturday, a Sunday, or a holiday, the period ends on the next day that is not a Saturday, Sunday, or holiday.
| If you served your claim by: | I served the claim on: | Rule that applies: | Effective date of service: | I can ask the clerk to note the defendant in default on: |
|---|---|---|---|---|
| Personally handing the claim to the defendant. | June 1st | Service is effective immediately | June 1st | June 22nd |
| Leaving a copy of the claim at the defendant’s place of residence with an adult member of the same household and mailing or couriering a copy the same or next day. See rule 8.03(2). | June 1st | Service is effective the 5th day after the claim was mailed or verified by courier that it was delivered. See rule 8.03(4). | June 6th (or June 7th, if the claim was sent the following day) | June 27th or June 28th |
| Service on a corporation by mailing or couriering a copy of the claim to the corporation or attorney for service and to each director. See rule 8.03(3). | June 1st | Service is effective the 5th day after the claim was mailed or verified by courier that it was delivered. See rule 8.03(4). | June 6th | June 27th |
| Leaving a copy of the claim with the defendant’s lawyer or paralegal, or an employee in the lawyer or paralegal’s office and receiving a signature on the back page of the document as acceptance of service. See rule 8.03(5). | June 1st | Service is effective on the date of acceptance indicated on the back page of the document. See rule 8.03(5) | June 1st | June 22nd |
| Sending a copy of the claim by registered mail or by courier to the defendant’s place of residence and obtaining a signature verifying receipt. See rule 8.03(7). | June 1st | Service effective on the date on which an individual verifies receipt of the copy of the claim by signature, as shown in a delivery confirmation. See rule 8.03(8). | June 4 because that day a person verified receipt of the copy of the claim by signature (as shown in a delivery confirmation) | June 25th |
The chart below lists the service requirements and time limits for specific documents you may need to serve in your case. It is a summary based on the Rules as they exist at the date of this guide. It is provided for your convenience only. You should always refer to the actual Rules.
Note: Rule 8.03(7) sets out a specific alternative to personal service applicable only to claims. The other alternatives to personal service can also be used (depending on the type of party).
r. 8.01(7)
On witness, together with attendance money, by
and
a copy of the summons (without attendance money) on other parties, if the witness is summoned in relation to their written statement or document under r. 18.02(3), by
On the debtor together with a sworn Affidavit for Enforcement Request (Form 20P), by:
On the garnishee together with a Garnishee’s Statement (Form 20F) by:
On the garnishee and the clerk by:
On creditor and debtor, by
On creditor, debtor, garnishee, co-owner of debt (if any) and any other interested persons by:
On debtor (together with a blank Financial Information Form (Form 20I) if the debtor is an individual) or the person to be examined by:
r. 8.01(13)
r. 20.11(3), (6)
On debtor or person to be examined by:
On all existing parties, including parties noted in default, by:
On any newly added parties that have not been served with the claim previously, by:
Filing and service at least 30 days before the originally scheduled trial date, unless:
On co-owners of the debt, together with a copy of the Garnishee’s Statement (Form 20F), by:
On all defendants served with the claim by:
After time for filing defence has elapsed (and no defence is filed)
Subsequently file with proof of service.
r. 15.01(3), (6)
r. 8.01(14)
Prior to Judgment: On every party who has filed a claim and any defendant who has not been noted in default, by
or
After Judgment: On all parties, including those noted in default, by:
r. 15.03(2)
r. 8.01(14)
On all affected parties, together with a copy of the notice of motion and supporting affidavit used on the motion, by:
r. 8.01(14)
r. 9.03(3)
On defendant by:
On the plaintiff and, if requested, on any other party by:
On the plaintiff who requested the terms of payment hearing or the creditor who requested the examination hearing by:
[ * ] ^ Service by the party includes service by their representative.