Service of the plaintiff’s claim is one of the most important steps for the Small Claims Court procedure. Service means delivery of the claim to the defendant. Below, we answer some common questions about how a plaintiff’s claim can be served in a small claims court procedure in Ontario.
First, let’s talk about:
Why is proper service of the plaintiff’s claim is so important in small claims court?
When a claim is served, the defendant has a set amount of time to respond to it and file a defence. If no defence is filed within that time, the assumption is that the defendant does not want to dispute the claim. Therefore, the plaintiff can then go ahead and obtain a “default judgment,” or a judgment in favour of the plaintiff, granted without the defendant’s input. With a default judgment, the plaintiff can begin collecting on the debt.
However, the defendant’s obligation to answer the small claim and file his or her defence depends on whether the defendant was properly served. You will need to show that you served the defendant properly in order to receive a default judgment. If you do receive a default judgment and it later turns out that the service wasn’t proper, the default judgment will be easy enough for the defendant to set aside (reverse, simply speaking), by filing a motion stating that he or she did not receive the plaintiff’s claim. In most cases, if such a motion is considered by the court, the judgement will not stand and the defendant will be allowed to file a defence and have his or her day in court.
How can the claim be served?
This depends on whether the defendant is an individual or a corporation, or another type of entity.
Individuals can be served by registered mail or personally. While registered mail is acceptable, personal service is generally the most reliable to serve a plaintiff’s claim. Personal service means delivery of the claim directly into the defendant’s hands. If the claim is delivered personally, it is hard for the defendant to deny delivery stating that the claim did not come to his or her attention due to a mistake of the Post office or for another such reason. Plaintiff’s small claims can also be served on an individual by leaving a copy of the claim with an adult member of the individual’s household, and sending another copy by regular mail on the same or the following day.
A Corporation must be served personally at its place of business, with the claim left with a director, agent or officer of the corporation, or the manager of the place of business. If the corporation can’t be found at its place of business as it is recorded with the Ministry of Government Services (on the corporate profile report), it can be served by mailing a copy of the claim to each of the directors, and the place of business, at the addresses recorded with the Ministry of Government Services (on the corporate profile report).
The above are the two most common types of entities being sued. There are some additional caveats to suing other types of persons, such as persons under disability, municipal corporations, etc. We can discuss these particulars in a later post.
How can service of the plaintiff’s claim be proven in court?
It is a common misconception that the court requires a witness of service or a photograph of the service in progress. The small claims court rules prescribe that service of claim should be proven by an affidavit of service sworn by the person who performed service. This last part is key: another common misconception is that the affidavit must be sworn by the plaintiff. This is only the case if it is the plaintiff who performed the service. The affidavit must include a statement of that person about the date, place and way of service. If service was made by registered mail, the signature of the recipient confirming the receipt of the registered letter should be attached to the affidavit.
What if the defendant refuses to accept personal service?
The court rules do not require signature of the defendant to confirm service. It is not uncommon for the defendant to refuse to take the claim. If this happens, the person serving the claim can just notify the defendant that the plaintiff claim is being served on him or her, and leave the document in the vicinity of the defendant, where the defendant can easily pick it up. Generally, the claim can just be dropped on the ground at the defendant’s feet.