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This Factsheet is divided into three parts:
- Part I will give you general information about how to serve court documents.
- Part II deals with what you do when you cannot find someone who must be served with a court document. Part II is called “How to Get an Order for Substitutional Service.”
- Part III deals with how to carry out an order by a Judge to serve someone by putting a notice in the Newspaper. Part III is called “Service By A Notice in the Newspaper.”
WHAT LAW APPLIES
The Small Claims Court Rules tell you how court documents must be served. The two main rules which apply are Rules 2 and 18. However, other Rules have sections which also deal with service. These include Rule 3(5); 4(2); 5(3); 6(7); 7(3),(8),(11),(18); 8(3); 9(1); 12(7),(11); 14(1); 16(9),(10).
WHY DOCUMENTS MUST BE SERVED
Why must court documents be served? The court system wants not only to be fair, but also to appear to be fair. It would not be fair for the court to make an order against someone unless that person had a chance to tell the court what happened from their point of view. To do so, a person being sued needs to know that they are being sued, and also needs to know about each time a Judge is being asked to make an order that will affect them. By requiring that certain court documents be served, the law ensures that each person in a lawsuit will have an opportunity to be in court to tell the Judge about the case from their point of view.
There are some times when a person being sued may not know in advance that a Judge may make an order against them. For example, there are times when an order must be made in an emergency. For example, let’s suppose you lent someone a valuable musical instrument and the person has refused to return it to you. Let’s suppose also that you have learned that the person is about to take the instrument out of BC. You may want to sue for the return of the instrument and go to court immediately to get an order to prevent the person from taking the instrument out of BC. There may not be enough time to serve the person with a Notice of Claim and Application to a Judge to prohibit the removal of the instrument from BC. In this case you may appear in Court without serving these documents. But if you are successful, the order you will obtain will be temporary. The order will include the right of the person being sued to have an early hearing to try to set aside the order you obtained.
Another example of a time when an order can be made against a person without that person knowing about it occurs when a person being sued can not be located. In this case a Small Claims Registrar or Judge must be satisfied that meaningful efforts were made to locate the person. Then a Registrar or Judge can allow a court document, such as a Notice of Claim, to be served in a special type of way, such as by advertising in a newspaper or by delivering the court document to a friend of the person being sued. Once service is carried out in the manner ordered by a Registrar or Judge, a court may grant an order against the person being sued, even if the person being sued has not actually found out about the lawsuit. For more information about this type of service see Part II of this factsheet.
WHO MUST SERVE DOCUMENTS
Some documents must be served by the Claimant, some by the Defendant, others by the Small Claims Court Registrar, and some by a Sheriff or Court Bailiff.
The main documents to be served by the Claimant are the Notice of Claim (together with a blank Reply form) and Applications to a Judge. The main documents to be served by the Defendant are Third Party Notices (together with certain other documents (see Factsheet 9) and Applications to a Judge. Documents to be served by the Registrar include the Reply, Counterclaim, Notice of Settlement Conference and Notice of Trial Date.
A Sheriff or Court Bailiff must serve a Summons to a Default Hearing.
SERVICE BY FRIENDS OR PROCESS SERVERS
If permitted by the Small Claims Rules a Claimant or Defendant can serve documents themselves. If they do not want to serve the documents themselves, they can have a friend serve them or they can hire a process server.
HOW SHOULD DOCUMENTS BE SERVED?
The way documents should be served depends on the document being served and who is supposed to get the document. Parties to a lawsuit may include individuals, partnerships, companies, extraprovincial companies, municipalities, societies, extraprovincial societies, and unincorporated associations.
SERVING A NOTICE OF CLAIM AND THIRD PARTY NOTICES
A Notice of Claim and Third Party Notice may be served as follows:
INDIVIDUALS OVER 19 years old can be served by:
- leaving a copy of the documents with the individual; or
- mailing a copy by registered mail to the individual. To prove that service by registered mail occurred, you will need a copy of the signature obtained by Canada Post at the time the document was delivered, or a print out of the delivery confirmation made available by Canada Post on the Internet.
INDIVIDUALS UNDER 19 years old should be served by leaving a copy with the mother, father or guardian of the person being sued unless a Judge orders otherwise. For more information see Factsheet 3 which is called “Lawsuits involving persons under 19 years of age.”
PARTNERSHIPS must be served by mailing a copy of the document by registered mail to a partner, or by leaving a copy of the document:
- with a partner; or
- at a place of business of the partnership with a person who appears to manage or control the partnership business there; or with a receptionist who works at a place of business of the partnership.
COMPANIES INCORPORATED UNDER THE BC CORPORATIONS ACT must be served by:
- mailing to the Registered Office of the company a copy of the document by registered mail. To find out the address of the Registered Office you may wish to do a search at the BC Corporate Registry Office. The way to do this search is described in Factsheet 2 which is called “Starting A Lawsuit.”
- A company can also be served by leaving a copy of the document at the Registered Office or at a place where the company carries on business. The document should be given to a receptionist or a person who appears to manage or control the business there.
- A company can also be served by leaving a copy of the document with a director, officer, liquidator, trustee in bankruptcy or a receiver manager of the company.
EXTRAPROVINCIAL COMPANIES must be served by:
- mailing a copy of the document by registered mail to the attorney of the company appointed under section 306 of the BC Corporations Act, or
- leaving a copy of it with the attorney. To find out the address of the attorney you can search the records at the BC Corporate Registry Office.
- If no attorney has been appointed, service can be done the same way as a BC company can be served (see above).
SOCIETIES must be served by:
- mailing a copy of the document by registered mail to the address for service on file with the BC Corporate Registry Office, or
- leaving a copy of it:
- at the address for service on file with the Corporate Registry Office, or
- with a director, officer, receiver manager or liquidator of the society.
EXTRAPROVINCIAL SOCIETIES must be served by:
- mailing a copy of the document by registered mail to the attorney of the society appointed under section 170 of the BC Societies Act, or
- leaving a copy of it with the attorney.
- If no attorney has been appointed, service can be done in the same way a B.C. Company can be served (see above).
MUNICIPALITIES, REGIONAL DISTRICTS, OR OTHER LOCAL GOVERNMENT BODIES must be served by giving a copy of the document to the clerk, deputy clerk or some similar official.
UNINCORPORATED ASSOCIATIONS including TRADE UNIONS must be served by:
- mailing a copy of the document by registered mail to the registered office of the association, or
- leaving a copy of it with an officer of the association or, in the case of a trade union, with a business agent.
SERVING OTHER DOCUMENTS
Documents other than a Notice of Hearing, Third Party, Notice, Summons to a Payment Hearing or Summons to a Default Hearing may be served as described above or by mailing the document by ordinary mail to the person’s address. When served by ordinary mail, the document is deemed to be served 14 days after it was mailed, unless there is evidence that it was received earlier.
SUMMONS TO A PAYMENT HEARING OR DEFAULT HEARING
A Summons to a Payment Hearing or a Default Hearing must be served:
- on an individual by leaving the summons with the person;
- on a partnership by leaving the summons with the partner who is being required to appear at the Payment or Default Hearing;
- on a company by leaving the summons with an officer, director or employee who is being required to appear.
Reminder: A Summons to a Default Hearing must be served by a Sheriff or Court Bailiff.
CERTIFICATE OF SERVICE
PROVING THE SERVICE OF A DOCUMENT
After a document has been served you must prove it was served. Proof usually is in writing although a Registrar or Judge can permit sworn oral evidence that a document was given to a person.
CERTIFICATE OF SERVICE
Written proof of service of a document (except for a Summons to a Payment Hearing) is done by completing and filing at the Small Claims Court Registry a Certificate of Service.
Attached to the Certificate of Service must be a copy of the document that was served. In addition, if service was done by registered mail you must attach either a copy of the signature obtained by Canada Post at the time the document was delivered, or a print out of the delivery confirmation made available by Canada Post on the Internet.
A Summons to a Payment Hearing requires an Affidavit of Service to prove service. A sample can be found in Factsheet 16, which is called “Payment Hearings.”
If a document was served personally on a lawyer or articled student, a copy of the document signed by the lawyer or articled student or a partner or employee of the firm can be filed at the Small Claims Court Registry to prove service of the document.
WHAT IS SUBSTITUTIONAL SERVICE?
When it is not possible to give a document directly to the person to be served and it is also not possible to serve them by registered mail, an application can be made to the Registrar of the Small Claims Court for permission to serve the document “substitutionally.” In other words, the Registrar can be asked to allow service by means other than personal service or service by registered mail. For example, substitutional service may occur by posting the document on the door of the person to be served or in the Courthouse, or by giving the document to a relative, or by advertising it in a local newspaper.
PROCEDURE TO SERVE A NOTICE OF CLAIM SUBSTITUTIONALLY
There are six steps to follow to serve a Notice of Claim substitutionally. The steps are:
- Make serious efforts to locate the Defendant.
- Prepare an Application to the Registrar.
- File the Application to the Registrar at the Small Claims Court Registry. Ask to see the Registrar so you can ask for a Substitutional Service Order.
- Have the Order written down.
- Carry out service of the Notice of Claim as required by the Order. Prepare and file proof that the Notice of Claim was served as required.
- Prepare and file proof that the Notice of Claim was served as required.
SEARCH FOR THE DEFENDANT
The first step to obtain a Substitutional Service Order is to make serious efforts to locate the Defendant. You should keep a record of the dates when you do the following things:
- Check the telephone directories (which are available in public libraries) or telephone Directory Assistance or search the Internet (for example using Canada 411) for a listing for the Defendant in any towns where he or she is known to have resided in the last several years or considered “home.”
- Contact friends and relatives of the Defendant to see if they know where the Defendant is.
- Contact the Defendant’s employer and former employers.
- Check with Motor Vehicle Registries in Provinces or States where the Defendant is likely to reside to see if they have an address. Most Motor Vehicle Registries are very helpful– but they charge a fee. Unfortunately, the BC Motor Vehicle Department and ICBC probably will refuse to help.
PREPARE AN APPLICATION TO THE REGISTRAR
Next prepare an Application to the Registrar. This is a document which tells the Registrar:
- What type of Order the person wants to obtain; and
- The evidence that will be used to support the application.
Click here to view a sample of a completed Application to a Registrar.
Click here to obtain a blank Application to a Registrar form.
First fill in the top portion of the form and tick the box which says “permitting another method of service.” Then there are only two parts of the form that may cause difficulty. These are the parts that asks for details of the Order you are asking for and facts upon which the application is based.
DETAILS OF THE ORDER YOU ARE ASKING FOR
In the “details of the Order” part of the form you can insert one of the following options:
- “By leaving a copy of the Notice of Claim with [insert name of person and relationship to Defendant, e.g., Judith Jones, the Defendant’s mother]”;
- “By sending a copy of the Notice of Claim regular mail to [then insert the address, e.g., 1221 Broad Street, Victoria, B.C.]”;
- “By posting a copy of the Notice of Claim on [then insert the location, e.g., the Notice Board at the Courthouse, 850 Burdett Avenue, Victoria, B.C.; or the front door of the Defendant’s home located at 816 Robert Road, Victoria, B.C.]”;
- “By advertising a Notice of Small Claims Action in a form to be approved by the Registrar in a newspaper circulating in [location where Defendant is likely to see it, e.g., Vancouver].”
Because advertising in a newspaper can be very expensive, the cost of advertising should be checked before asking for this kind of service.
FACTS UPON WHICH THE APPLICATION IS BASED
In the part of the form which asks for the facts upon which the application is based, you should include:
- What you know about where the Defendant has resided in the past; and
- The information you collected in your search for the Defendant.
Here are some sample phrases you might use (with the necessary changes to make them fit your facts):
- “In addition to residing in [location, e.g., Victoria], the Defendant told me he had also resided in [e.g., Kamloops].”
- “On [date] I searched Canada 411 on the Internet and located one listing for a person with the same name as the Defendant in [location, e.g., Kamloops]. I telephoned the number but the person who answered was not the Defendant and had never heard of the Defendant.”
- “On [date] I spoke to the Defendant’s [relative, e.g., mother], [name, e.g., Mabel Jones] and she told me she has no knowledge of the Defendant’s whereabouts.”
- “On [date] I spoke to the Defendant’s former employer [e.g., Arnold Smith] and he told me he has no knowledge of the Defendant’s whereabouts.”
- “I know of no other relative, friend or employer of the Defendant who might know where the Defendant is located.”
FILE THE APPLICATION TO THE REGISTRAR
After completing the Application to the Registrar it should be filed at the same Small Claims Registry where the Notice of Claim was filed. At the time of filing ask to speak to the Registrar. The Registrar will review your written application and may ask you questions. The Registrar will then either grant your request for an Order, or will tell you what further things must be done to obtain an Order.
If an Order is granted by the Registrar, it should consist of two parts:
- It should describe how substitutional service must be done.
- It should state how much time the Defendant has to file a Reply.
The Order granted may not be exactly what you asked for. For example, you may have asked for an Order allowing you to post the Notice of Claim on the Courthouse Bulletin Board. The Registrar may have decided that serving the Defendant’s mother would be better because the Defendant might be more likely find out about the lawsuit that way.
THE ORDER WILL BE PUT IN WRITING
Whatever Order is granted will be written by the Registrar (or a Clerk) in the box on the Application to the Registrar form, which starts with the words “The Court Orders that…”. The Order should then be filed at the Court Registry.
SERVE THE NOTICE OF CLAIM AS REQUIRED BY THE REGISTRAR
Once the Registrar has signed the Order, you should make arrangements to serve the Notice of Claim in the manner directed by the Registrar.
A copy of your Order for Substitutional Service should be served at the same time that the Notice of Claim is served.
If service is ordered by advertising, you should refer to Part III of this factsheet.
FILE PROOF OF SERVICE
To prove that the Notice of Claim was served as required, do the following. If the Notice of Claim was given to a person, use the usual Certificate of Service. Be sure to record the fact that the Notice of Claim, Reply and Registrar’s Order were served.
If a Notice of Claim is served by leaving it with a relative, prepare a Certificate of Service like the one set out in this example.
If a Notice of Claim is served by posting, prepare a Certificate of Service like the one set out in this example.
THE NEXT STEP
If the Defendant does not file a Reply in the time allowed, see Factsheet 7 entitled “Obtaining a Default Order.” If the Defendant does file a Reply, you will receive from the Court Registry an appointment for a Settlement Conference, see Factsheet 12 entitled “The Settlement Conference.”
HOW TO COMPLY WITH A SUBSTITUTIONAL SERVICE ORDER THAT REQUIRES ADVERTISING
This part of the Factsheet will tell you what you should do to comply with an order for substitutional service where a Registrar has ordered that a Defendant be served by way of advertising. The steps which you should follow are:
- Prepare a Notice of Small Claims Action;
- Have the Notice reviewed by the Small Claims Court Registrar or Clerk. Although it is your responsibility to ensure the correct wording, the Clerk may be able to assist you to avoid making errors;
- Make arrangements to advertise the Notice in the appropriate newspaper(s); and
- Prepare a Certificate of Service proving that the advertisement was published.
PREPARE A NOTICE OF SMALL CLAIMS ACTION
A Notice of Small Claims Action will be the Notice which you will advertise in the newspaper. The Notice will be addressed to the Defendant and will contain the following information:
- Your name;
- The fact that a Small Claims Court Notice of Claim has been filed;
- The Registry in which the Notice of Claim was filed;
- A statement of what you are suing for;
- Information about how the Defendant can defend the lawsuit; and
- The number of days which the Defendant has to file a Reply.
Below is a sample of a Notice of Small Claims Action.
NOTICE OF SMALL CLAIMS ACTION
“TO: The Defendant, CAROL SMITH
BRYAN BROWN has filed a Notice of Claim No. 328/01, in the Victoria Registry, Provincial Court of British Columbia, asking for damages sustained as a result of a motor vehicle accident involving you.
Your whereabouts being unknown, the Small Claims Court ordered service upon you by this advertisement. If you wish to defend or counterclaim, the steps you must take are set out on a Reply form. A copy of the Notice of Claim and Reply will be mailed to you upon a request addressed to the Registrar, Provincial Court, 850 Burdett Avenue, Victoria, British Columbia, V8W 1B4.
If you do not file a Reply in the said Registry within thirty (30) days of the date of publication of this advertisement, then you will not be entitled to further notice and the Claimant may proceed and the relief claimed may be given in your absence.”
HAVE THE NOTICE OF SMALL CLAIMS ACTION CHECKED
After you have prepared the Notice of Small Claims Action, take it to the Court Registry where you filed your Notice of Claim. Ask the Small Claims Registrar or Clerk to check the Notice of Small Claims Action which you have prepared.
DELIVER THE NOTICE TO THE NEWSPAPER
You can send the Notice to the newspaper in which you intend to advertise it. If you intend to mail the Notice you should first telephone the newspaper to inquire about their rates and the terms under which they expect payment.
Below is a sample letter to assist you if you decide to forward the Notice of Small Claims Action by mail to a newspaper.
2621 Douglas Street
Attention: Advertising Division
Dear Sir or Madam:
Please find enclosed a Notice of Small Claims Action which I wish to advertise in your newspaper.
Would you please publish it once in a weekend edition of your newspaper in the exact form as I have presented it. After publication, would you please send to me a tearsheet as soon as possible so that I may proceed with the lawsuit.
Thank you for your assistance in this matter.
Yours very truly,”
PREPARE A CERTIFICATE OF SERVICE
To prove service that was done by way of an advertisement, you should prepare a Certificate of Service like the one set out in this example. You will also need a copy of the tearsheet from the newspaper. A tearsheet is a copy of the newspaper page on which the advertisement appeared. Attach the tearsheet to the Certificate of Service.
FILE THE CERTIFICATE OF SERVICE AND TEARSHEET
Take your completed Certificate of Service and tearsheet to the Court Registry and file them.
Prepared by Glenn Gallins
Revised February 2008, links checked 2019
Funded by the PLE Program of the Legal Services Society