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Personal Injury Law: Service via Facebook should become the norm

Canadian Courts are beginning to accept service via Facebook.

Recently, my colleague was able to persuade Justice Susan Healey of the Ontario Superior Court of Justice that substituted service of a statement of claim on a defendant via Facebook was appropriate (see the unreported decision of Juzytsch v. Terlecki from the court in Barrie, Ont.). Other provincial courts have similarly allowed service via Facebook or similar Internet message board services, including in Alberta and British Columbia.

To succeed in any such motion, counsel must establish that the person’s whereabouts for personal service are unknown despite diligent investigation; the Facebook profile belongs to the person in question; and the person is an active user of Facebook such that the claim will likely come to the person’s attention.

While the case law has focused on service through Facebook, the courts could also consider substituted service through other popular social networking web sites like LinkedIn, Twitter, and Instagram.

The movement to allow service through Facebook reflects the court’s willingness to consider practical and economical solutions. The requirement for hand-delivered document service, while historically sensible, is somewhat archaic in this electronic age. Successful service should be all about making sure that the person is aware of the document. For those of us who are more present online than offline, receiving vital information electronically is commonplace.

With ongoing efforts to reduce the costs of litigation and the court process, electronic service should become the norm rather than the exception.

Darcy Merkur is a partner at Thomson Rogers in Toronto practising plaintiff’s personal injury litigation, including plaintiff’s motor vehicle litigation. He’s a certified specialist in civil litigation and creator of the Personal Injury Damages Calculator. The order for substituted service through Facebook in the Barrie case mentioned above was obtained by his colleague, Robert Ben, an associate at Thomson Rogers.

  • Ruth James
    Interesting article. I had no idea that a counsel would be willing to use facebook. I suppose it makes sense if the defendant is a constant user of facebook. I wonder what other changes will happen in law because of technology.
    Ruth James
  • John G
    I understand the case-by-case determination for sub service and have no problem with it. Service by Facebook is probably more likely to come to the attention of the person to be served than some other methods that the courts sometimes agree to.

    My question addressed the assertion that FB service should become the norm because so many people spent more time online than off (whatever that actually means in practice.)

    If that means 'the norm for substituted service', then I am prepared to agree, though still with some evidence of actual use of a specified page. If it means 'the norm for service, instead of in-person service', then I do not agree, because of the impossibility of proving actual notice of the documents served.
  • Yens Pedersen
    John G, as with any substituted service order, its a potentially open question to be decided at the time. However, a view of the statuses posted, friends and photos could all provide evidence of whose account it is. If there is no profile picture, then it is likely an account with restricted privacy settings which would make it unlikely that you could have enough evidence that it would come to the person's attention. However, many people have more public profiles. It's a case by case determination.
  • John G
    how does one demonstrate - especially in the face of a denial at a later stage - that the defendant actually received the information sent to his or her Facebook page (and how does one prove whose Facebook page it is, if there is no picture associated with the name)?

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