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Recently a number of litigants have had their judicial review applications dismissed simply because of insufficient or late service of court documents. Failing to serve promptly all the people who may be significantly affected by judicial review to quash is irreparable. That duty to serve and the time limit to serve are in a statute, and so the court cannot extend the time, nor excuse the incompleteness of service. (See Rule 3.15, and the notes to it in the Stevenson & Côté Handbook, Parts F and G.)

That is not the only situation where a number of people must be served within a time limit. Most types of service have some kind of time limit, even if it is just what is a reasonable time. (Time to serve a statement of claim often cannot be extended.) And if the court makes a decision before a relevant person has been served, or less than 48 hours after service, that person likely has a firm right to a rehearing.

Often the court can extend the time to serve or cure the defect in service. For example, where a time limit is found only in the Rules of Court, or where the statute expressly lets the court do such repair work. But even that curing power is not automatic like the “get-out-of-jail-free” card in the game of Monopoly. Sympathy is not enough for relief; there are usually a number of substantial hurdles before giving relief. Poor chances on the substance of the suit or application, or prejudice to another party, often bar relief.

Frequently, lawyers do not even think about service or its practicalities, until all their papers are ready to serve. Sometimes by then it is too late, or almost too late. If you are building a garage, you should not wait to order various items of lumber, hardware, or wiring, until each is needed, or the day before. The automatic car door may be installed last, but if it takes some time to measure, select, order, and ship it, then the door may be one of the first things you need to order, not the last. If one of the opposing people in upcoming litigation is working in Algeria, or is hard to find, or likely to evade service, then preparations to serve him may be one of the first things to research and plan, not the last.

What if serving court papers on someone may prove difficult? Or if the time limit is set by a statute? Or if a number of people may be affected by new litigation or by an application in an existing suit? What if a lawsuit has many parties? What if you are moving to quash some government or tribunal decision? You need to find out whether time to serve may be tight, or who to serve may be unclear, or service itself may be difficult. In such cases, it is probably wise to split the work. Have one lawyer draft the court documents and any evidence, and get them filed. But have another lawyer (or paralegal) look up, plan, and carry out all service. This second job about planning service should begin at once, not wait until the court documents are filed or about to be filed.

– Hon. J.E. Côté

SERVICE PITFALLS