Toronto Injury Lawyer Blog
2024 was a great year. But, that’s not to say that we here at Goldfinger Injury Lawyers wouldn’t like to see some changes to how things play out for litigating personal injury cases in Ontario.
New Years is a great time for top 10 or top 5 lists for changes we’d like to see. But, I know that such changes aren’t realistic because the wheels of change when it comes to the legal system turn very slowly, or simply don’t turn at all!
That’s why I’m going to focus this edition of the Toronto Injury Lawyer Blog on just one procedural change which I’d like to see in 2025. Just one change! That’s it! It’s not a big ask at all. It doesn’t impact the merits of the claim, nor does it impact how cases are heard/adjudicated thereby giving one party any sort of procedural advantage. The change is neutral, and is intended to save everyone, along with the Courts time and money. It has to do with the service of the Statement of Claim and motions for Substituted Service in Ontario.
New Rules for Substituted Service Motions
Courts don’t have the time, man power, or money to keep up. They are constantly understaffed and backlogged. They cannot keep their heads above water.
There are steps which the Rules require parties follow to push a case through the system. One of the most basic procedures is serving the Statement of Claim on the Defendant.
Often times, a Defendant’s address changes. Perhaps they have moved. Perhaps they are avoiding/evading service. Perhaps they have fled the province or the country.
What happens when a Plaintiff cannot serve the Statement of Claim on the Defendant because they’ve vanished? Does the case end right there? No, it doesn’t. There is a mechanism is the Rules of Civil Procedure which has contemplated such an occurrence; because it happens more than you would think.
The Plaintiff is allowed to bring a motion to the Court (Judge or Associate Judge) for an Order for substituted service. This means that the Statement of Claim does not need to be served personally on the Defendant, because that’s not possible given that the Defendant’s whereabouts are unknown. Instead, the Plaintiff can serve the Plaintiff by some other method which the Court permits. This can be by way of regular mail, courier, fax, email, or even a Facebook message! It’s in the Judge’s discretion as to what they will permit, and is largely based on the facts.
For instance, it the Plaintiff does not have a last known address for a Defendant, but has an active email address for that Defendant, then the Judge may Order that the Statement of Claim can be served by way of email.
These motion are necessary to effect proper service.
But here is the issue.
Not only are they costly, but they are also a drain to the Court’s time and resources which are already stretched to their limits.
What’s even more frustrating is that Defendant insurers acknowledge that they will defend the claim once service has been effected. Yet, they will refuse to accept service on behalf of their insured; and sit on the sidelines waiting for service to be effected. Once service has been properly effected, they will be all too eager to get involved in the case because now they have a license to bill their hourly rates for their work.
These substituted service motions often don’t happen in a vacuum, such that the insurer for the defendant is caught off guard. In most cases, the lawyer for the Plaintiff has been corresponding with an insurance adjuster for one to two years. In fact, the lawyer for the Plaintiff will send the insurance adjuster a copy of the Affidavit of Attempted Service and ask the adjuster for an updated address for their insured. The lawyer for the Plaintiff might even ask if the insurance adjuster can accept service on behalf of their insured. Having worked in the field of personal injury law for over 20 years, I have never seen an insurance adjuster agree to his/her company accepting service on behalf of their own insured. Instead, they require that the Plaintiff go to the expense of filing the motion materials. This serves to further delay the case because getting a motion date takes a lot of time given the backlog at the Court. The insurer will also not consent to the motion, meaning that the motion cannot proceed on consent. When these motions are brought, courts do not criticize insurers for wasting their time knowing that the result is all but a formality. Legal costs against insurers for sitting out on the sidelines and forcing the Plaintiff’s hand are not awarded. I can assure you that if it was clear that the insurer would be indemnifying the Defendant, and Courts got into the habit of awarding costs in favour of the Plaintiff for the motion, that there would be far less of these motions. Check the commercial list in Toronto, or the Federal Court in big pharma cases. You very rarely have substituted service motions where lawyers are involved and where there is an acknowledgement that the lawyers will be acting once service has been formalized. The lawyer (or insurer), accepts service of the claim so that the case can move forward in the normal course. If you reduce the amount of substituted service motions, that will reduce the amount of motions which a Judge or Associate Judge has to hear on their list on any given day; affording them more time on more pressing matters.
Here is what should happen.
In cases like these, insurers send a standard form letter acknowledging coverage for their insured, and requesting a variety of records from the Plaintiff. These letters are sent out early on; in most cases, after a notice letter has been sent out. Once these sort of letters are received, the insurer (or their lawyer) ought to accept service in the event that service cannot be effected personally on 2-3 attempts. If a Plaintiff has to bring a motion for substituted service, and they can produce evidence that the insurer will be defending their insured (in the form of a standard notice response letter), then there should be no reason as to why costs cannot be awarded against a Defendant, in favour of a Plaintiff, on account of the Defendant insurer willingly sitting out on the sidelines thereby forcing the Plaintiff’s hand and putting the Court to the expense of hearing the motion. The effect of ordering costs would be fewer of these sub service motions; the cases would run through the system faster, and the Courts would have more time and resources to use on other pressing matters. If we are all looking at ways to have cases move faster and more efficiently through the system, this is one of the ways which does not press too hard on the merits of the actual case itself. It’s simply a procedural hurdle which should be avoided if it can be.
