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Motion to Validate Service: a Request for Court Order to Confirm Acceptance of Document Service
Question: Can an Ontario Small Claims Court document served the wrong way still count as served?
Answer: Yes, Ontario courts can validate improper service if the document came to the recipient’s notice (or would have except for evasion) under Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 16.08, and Small Claims Court may look to those rules where its own rules are silent under Rules of the Small Claims Court, O. Reg. 258/98, Rule 1.03(2). Hall Paralegal Services provides Ontario paralegal services and can help prepare a Motion to Validate Service with evidence of notice and diligent service attempts to keep your Small Claims case moving.
A Document Served Improperly May Be Deemed Served
The Rules of the Small Claims Court, O. Reg. 258/98, lack a specific rule dealing with the situation where the intended recipient receives a document in a manner outside of the prescribed Rules. Consequently, in such a scenario, it becomes essential to refer to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, where there is a provision for validating service via a Motion to Validate Service. The pertinent sections in the Rules of the Small Claims Court and the Rules of Civil Procedure are as follows:
Matters Not Covered in Rules
1.03 (2) If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
Validating Service
16.08 Where a document has been served in a manner other than one authorized by these rules or an order, the court may make an order validating the service where the court is satisfied that,
(a) the document came to the notice of the person to be served; or
(b) the document was served in such a manner that it would have come to the notice of the person to be served, except for the person’s own attempts to evade service.
Conclusion
Filing a Motion to validate service can help to ensure that a case proceeds without unnecessary delays. In a Motion to validate service, it is beneficial to show that there were efforts to serve documents correctly and to provide any available evidence to support the request for validation.
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