There are more difficult, disorganized, excitable, very hostile, tricky, or dishonest litigants than there used to be. For some reason (maybe irrational), many of them especially resist service, or giving an address for service. Some deliberately ignore all mail or messages. They are difficult and expensive to serve, and proving service or notice is even more difficult.
Where an opposing party is not officially represented by a solicitor of record, take extra care with service. Do not build your castles upon foundations of sand. Especially when you contemplate or get an order for, substitutional service.
A recent case shows how extra thought and care saved one lawyer from potential grief. Other lawyers would benefit from similar steps.
Substitutional service had been ordered, apparently by taping documents to the two (locked) gates of the opposing party’s property. The person serving put two copies of the documents to be served into two separate manila envelopes, each envelope stating on the outside what it contained. One envelope was taped to the gatepost of each gate, at different locations. Each envelope taped in place was then photographed (as is easy with cellphones).
Then proper service was denied. An affidavit of service was prepared and sworn. This affidavit did more than describe the date and mode of service used. It also exhibited the photographs of the two envelopes (with outside descriptions) on the gateposts of the two gates.
Better still, cross examination of the opposing party showed that the two gates were the only way to get into the property; it was impossible to get in to the building inside, without going through one of those two gates and seeing the envelope and the message written on it. (Putting that fact into the affidavit of service would have helped too.)
The court held that the service was proper, and that it must have come to the opposing party’s notice: Breitkreuz v. Breitkreuz 2021 ABQB 339, JCE 4803 130530 (Apr 28) (¶’s 24-26).
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.
