Cyber-service ‘a new frontier’

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.

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.”

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