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Cyber-service ‘a new frontier’

|Written By Michael McKiernan

An Ontario judge has urged lawyers to be creative with electronic methods of service after allowing a litigant to do it using Facebook in a family law case.

‘In the world of Facebook, MySpace, and texting, it’s a real development. It brings the law completely and fully up to date in terms of service,’ says Eugene Meehan.

Earlier this month, Ontario Superior Court Justice Cheryl Robertson presented a paper on substituted electronic service to the Kingston and the 1000 Islands Legal Conference. Alison McEwen, a judicial law clerk, co-wrote the article.

“In a province where, for reasons of money and time, the judicial system is increasingly out of reach for many, e-service can be a useful and viable alternative,” they wrote. “It is not only time efficient but also cost-efficient.

It will cost an applicant nothing to serve someone on Facebook or by e-mail, and further, for the younger generation, this is a medium that they understand and know how to use.”

But Roberston, who has also allowed service by BlackBerry, warned that the notoriously slow court system might not embrace the trend immediately.

“It will be foreign for some, and some will be uncomfortable using these electronic servers, but with time their advantages will likely win over even the greatest of skeptics,” the pair wrote.

“You may have to educate judges and convince them that this option is viable. Cyber-service is a new frontier waiting for your creativity and imagination.”

The Facebook case involved a paternity action in which the mother was unable to track down an address for the father.

She was, however, able to find him on Facebook and sent him a message with documents attached. His reply, which was then attached to an affidavit as an exhibit in court, was enough to convince Robertson to issue an order that service was effected.

Eugene Meehan, chairman of the Supreme Court practice group at Lang Michener LLP, says it’s the first time he’s seen Facebook used as a method of substituted service.

“In the world of Facebook, MySpace, and texting, it’s a real development. It brings the law completely and fully up to date in terms of service.”

Meehan expects the trend to persist as social media continues to play a pivotal role in the lives of litigants and lawyers alike. “It’s just the reality today,” he says. “When you walk out in the street, how many people do you see texting?”

Toronto Internet lawyer Gil Zvulony says he was happy to see a judge welcoming social media into the court process. “Judges are sometimes a little more conservative and not ready to embrace new technology, so that’s refreshing.”

Kristin Muszynski, who helped organize the conference, says the relative youth of the bar in Kingston, Ont., made the judge’s talk a particularly popular and pertinent one.

The Rules of Civil Procedure allow for substituted service of originating documents when it appears “impractical for any reason to effect prompt service.”

The Family Law Rules are even more stringent. They demand that applicants demonstrate attempts at traditional service before granting an order for substitution.

In the paper, Robertson suggested family law litigants are often anxious to avoid being found. “This may be because they are anticipating the claim, for example, for return of a child, an increase in support or other predictable consequence to changes in circumstances,” she and McEwen wrote.

But, they noted, “Those same people are often tethered to their phones or computers and will maintain a cyber address for purposes of communication with their base group.”

According to Muszynski, expanding the legal options to include electronic methods may dissuade respondents from evading service as a delaying tactic.

“In my practice, it will be very beneficial,” says Muszynski, who practises civil litigation and family law. “I think just knowing that this is an option will change the way we litigate.”

With a military base nearby, she notes service can quickly become an issue in family matters with spouses and children scattered across the country.

“Costs can be quite significant. I think this has done a good job of showing that the judiciary is noticing and looking at more cost-effective measures. The court needs to get with the times and look at other options that would improve access to justice.”

The authors of the paper also said e-mail has distinct advantages over traditional methods of substituted service, such as delivery by registered mail. Litigants can tell almost immediately, for example, whether the e-mail address exists.

At the same time, when a message goes to the wrong user, the recipient is far more likely to reply and let the person know than send the documents back by mail. Facebook is even better, according to the authors, because a user’s recent activity can be an indication that

the account is still active.

Although he hasn’t served anyone by Facebook, Zvulony says he has used the social networking site to deliver demand letters and track down unknown defendants in prospective actions.

For him, Facebook is a much better option than traditional methods of substituted service, such as placing an ad in a newspaper. He has also considered creating a web site using the name of a defendant with originating documents available for download.

“The chances of someone Googling themselves is probably higher than somebody catching a legal notice in the Toronto Star directed to them,” he says. “It’s not a great way of serving someone but compared to putting an ad in the newspaper, it’s much better.”

Zvulony notes he would like to see the Rules of Civil Procedure relaxed to allow electronic service more easily than at present.

By the time a lawyer has attempted personal service, drafted an affidavit, and prepared a motion for substituted service by Facebook, the client could already have racked up thousands of dollars in costs. “It’s only a last resort and it needs judicial blessing,” he says.

“We need some reform in the Rules to allow for more efficient service. There are many ways the lawsuit could come to that person’s attention without having to have a third party go and knock on that person’s door at the dinner hour.”

  • Sophie Mortimer
    This could provide a really interesting precedent. I'd like to see how it changes the dynamics of serving legal papers. I wonder if any electronic courier services exists to provide a buffer between the one serving and the one being served. That would be worth investigating.
  • A Guerin
    Well using Facebook would be of some interest, not everyone has an account with this network. The business of serving documents could be streamlined if the Ministry would allow other methods then in person service. The use of e-mail, registered mail, or courier would make it faster and more convenient, especially for small claims actions.
  • Oregon Law student interested

    DF Lickiss
    If any of my Canadian cousins would care to share the article or provide a cite that I might be able to look it up, I would be deeply in your debt. We have a very small bar here in Oregon and it would be an interesting discussion for some of our classes.

    Many thanks.

    D.F. Lickiss
    dlickiss@willamette.edu
    Salem, Oregon
  • Facebook Service

    Frank Freeman, Nelson, New Zea
    There was a case last year where a Court in Canberra, Australia, sanctioned service via Facebook on debtors; and a few months ago, the Family Court in which I practise in Nelson, New Zealand, authorised service via Facebook in relation to a paternity matter where the putative father lived in Australia. It couldn't happen because I (and my client) were not friends of the father but at least the Court was progressive enough to grant the application...
  • Facebook Service

    Adriana Meloni
    Justice Scaravelli allowed me to likewise serve through Facebook here in Nova Scotia in the Fall of 2009.
  • Facebook service

    Katherine Still in Aurora
    I have now recieved a copy of the paper from two very kind gentlemen! Thank you so much, both of you. It is really great to have a network out there.
  • Miss

    Lindsey
    Could someone give me the name of the case of Justice Robertson's decision (and the citation) or forward me a copy of the paper?
  • Facebook Service

    Katherine Still in Aurora, Ont
    I would be thrilled to get a copy of Justice Robertson's paper! I have at least two cases at the moment where finding the person to serve him is an issue. Deos anyone know how to get a copy of the paper?
  • Faceboook service

    Gavin Wood Freitag
    Madam Justice Pierce, of the superior Court, Thunder Bay, made a similar order earlier this year in Quast v Quast - we believe this was novel in Ontario at that point in time -
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