Service and Social Media - Hull on Estates #228
Listen to: Service and Social Media
This week on Hull on Estates, Paul Trudelle and Sharon Davis discuss two articles that discuss service via social media.
The two articles they discuss are:
- “Cyber-Service 'A New Frontier'” by Michael McKiernan. This article can be found in the October 25 edition of the Law Times.
- “At Your Substituted Electronic Service” by Justice Cheryl Robertson and Alison McEwen.
If you have any comments, send us an email at hull.lawyers@gmail.com or leave a comment on our blog.
Paul E. Trudelle – Click here for more information on Paul Trudelle.
Sharon Davis – Click here for more information on Sharon Davis.
Paul Trudelle: Hi and welcome to Hull on Estates. You’re listening to episode 228 on Tuesday, November 9, 2010.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
Sharon Davis: Hi and welcome to another episode of Hull on Estates. I’m Sharon Davis.
Paul Trudelle: And I’m Paul Trudelle.
Sharon Davis: If you want to be heard on Hull on Estates you can participate by leaving us a comment, email us at hull.lawyers@gmail.com or you can visit our blog at estatelaw@hullandhull.com.
Paul Trudelle: How are you today Sharon?
Sharon Davis: I’m great Paul thanks, and you?
Paul Trudelle: Very good thank you. Today we thought we’d talk about issues of personal service, alternates to personal service and substituted service. And we came across an article just on this point in the Law Times October 25, 2010 issue and we thought we’d spend a little time talking about that because it’s a very…it’s a neat issue and it’s a very cutting edge issue dealing with electronic media and we thought that would be right up our alley.
Sharon Davis: It really is. Social media is so important these days you pretty much can’t open a newspaper even, which is ironic, since that’s print.
Paul Trudelle: Yes.
Sharon Davis: Or read anything anywhere without hearing about it. And Michael McKiernan of the Law Times had a really interesting article and it was all about service via Facebook.
Paul Trudelle: Yes, I actually read this article on-line. So I was part of the email or electronic age to read this. Yeah, his article talks about a Kingston judge, the Honourable Madam Justice Cheryl Robertson and the decision she made that allowed for electronic substituted service and it picks up on an article prepared by the Honourable Justice Madam Robertson and a law clerk Alison McKewen that was presented at the Kingston and Thousand Islands Legal Conference, October 1, 2010. And we thought we’d spend some time discussing that.
Sharon Davis: It’s pretty cutting edge really. And she makes an awful lot of really great points. Unfortunately we were unable to get a copy of that decision. I don’t believe it was… we don’t even have the order in fact, but we do have Madam Justice Robertson’s word for it. And certainly Michael McKiernan’s interview with her. Apparently there was… it was a family law case and there was really no way to reach the respondent in that case and… but Facebook everyone’s there, everyone’s always at home at Facebook it seems. And so the judge allowed service in that manner.
Paul Trudelle: Right and I guess just to step back by way of a bit of background, originating process, so that would be a Statement of Claim or Notice of Application must be served by personal service or by an alternative to personal service. And that’s under Rule 16.01 of the Rules of Civil Procedure. So that applies to originating processes. All other documents may be served by other less restrictive means, but the originating process, the document that starts the law suit must be served personally or by an alternative.
Sharon Davis: Right and personal service, of course, is you have a process server actually hand the document to the person being served. An alternative to personal service… there are a few ways you can achieve that under Rule 16.03. Either a lawyer can accept on behalf of the party. You can mail it to the last known address and if you get back a receipt card acknowledging receipt of the documents then that is an alternative to personal service. Or you can leave the document with an adult member at the last known address. If there is an adult member of the family at home you can do that and then mail out the documents later.
Paul Trudelle: Right and that’s not always easy to do. In most cases it does work but in many cases it doesn’t work and there’s often what we call or what the Judge calls slippery litigants who are very hard to serve under personal service or an alternative. In that case, the recourse is to bring a motion for substituted service under 16.04 of the Rules and substituted service can be obtained where it’s impractical to serve the person personally or by alternatives to personal service for any reason. What you need to show in order to succeed on that motion for substituted service is first, that you’ve taken steps to serve the person personally or by an alternative, but it was impractical to do so. And then you must show that the substituted service that you’re seeking will in some likelihood or be reasonably expected to bring the originating process to the attention of the person you’re claiming against. And that’s where Facebook may come in.
Sharon Davis: That’s right. And, you know, its good news for us in estates law because the family law rules are even more stringent with respect to service in that regard. And they demand that applicants actually demonstrate attempts at traditional service before granting an order for substitution. So it’s not just that it is impractical, which is what the test is in general, but they’ve actually made attempts.
Paul Trudelle: Right and I think that’s going to be important when you’re trying to convince a judge that you should be able to serve by alternate service. Either that you’ve made attempts or you should set out the steps that you’ve taken to try to serve the person and show that, you know, under the family law rules that you’ve made attempts or that under the civil rules that it’s impractical to do so. So you’re going to need some strong evidence to show why you need the substituted service. The second part of the test is will the substituted service bring the document to the person’s attention? Traditionally, we’ve seen substituted service orders where notice is placed in newspapers as Madam Justice Robertson points out in her article. That’s not always the case. People don’t read newspapers as much as they used to and if they do read the newspapers, they’re not reading the classifieds where you’d normally see that type of posting.
Sharon Davis: Right, there are many advantages if you really think about it to serving either through Facebook and I think Madam Justice Robertson has even allowed service through Blackberry. And there’s mention of texting. I don’t think I would want to create originating documents by text message, personally but, you know, it’s one of those ways to get someone’s attention. What are the advantages Paul, do you think, of having electronic methods of service instead of the traditional ones?
Paul Trudelle: Madam Justice Robertson points out a number of those. One is that it’s…people don’t often have a physical address or an actual address or a readily discernable one. They often as she says, couch surf, don’t set out or show a real address, although they do have a presence on Facebook. One of the advantages is that you can see… you can often see the picture of the person on Facebook and therefore be certain of the person that you’re going to be serving is the person that’s intended to be served. Another one is that if you look at the person’s recent activity on Facebook, recent postings, things like that, you can satisfy yourself and more importantly, satisfy a court that the Facebook file is still active. It’s being used by the person and therefore it will come to his or her notice if you were to send a notice to them on Facebook.
Sharon Davis: That’s right and, of course, if an email address or if Facebook is not available, you’ll generally get a message telling you that you’ve not effected service or your message has not reached the intended recipient.
Paul Trudelle: Right and she points out two scenarios. One is if the email address is no longer working, you’ll find that out right away by way of return message. If you’ve sent it to the wrong person she says, you’re more likely to get a response saying that I’m not the person that you intended to serve. More likely to do so than if you were to serve it my mail, for instance, where the person would have to actually send something back saying that they’re not the person.
Sharon Davis: Another thing she points out as well is that on a Facebook profile you can often tell who people’s friends are and so that might be an alternative. At least you can find someone who is an adult who is a friend of the person and you might be able to get the documents to them that way. Even though you can, of course, adjust the privacy settings on Facebook, she points out that most litigants are not savvy enough to do that.
Paul Trudelle: Right. She does point out in her article a few problems with or issues with respect to serving by Facebook. The first one is that it may be against the terms and conditions of the user’s agreement on Facebook. That’s the screen that we don’t always read fully and people just usually click and accept. But there, there’s a requirement that the Facebook page not be used for commercial purposes and Madam Justice Robertson, in her paper, takes us through that and considers whether serving a person by Facebook would be considered a commercial use or not. But that’s an issue that we should be aware of.
Sharon Davis: And the other one would be privacy issues. And Courts will obviously have to be careful that privacy doesn’t become an issue for those being served on Facebook. Though a message sent on Facebook remains private, posting on one’s wall, for instance, if that happens, is visible for everyone to see. So that might be another issue we’d have to think about.
Paul Trudelle: Right and she strongly suggests that if you are going to serve a person this way, or if there is an authorization to serve a person by Facebook, that it be done so that it’s private and not posted on someone’s wall.
Sharon Davis: Certainly it would be a way less expensive and much less labour intensive way of serving people in the future if Courts were to adopt this particular method.
Paul Trudelle: It would. And then one of the things that Madam Justice Robertson seems to suggest is that there should be rule amendments that would allow for this type of service in the same way that service by mail is allowed as an alternative to personal service if the person acknowledges receipt. Perhaps service by email may be allowed if the person acknowledges receipt, and that might be something that we’ll see in the future, certainly as the Courts become more tech savvy and more aware of the use of web pages and email.
Sharon Davis: Well I can be certain I won’t be served on Facebook since I’m not there, but I guess LinkedIn might be a difficulty.
Paul Trudelle: You’re there and yes. That’s how you can find her if you need to serve her.
Sharon Davis: I guess that brings us to the end of today’s podcast.
Paul Trudelle: Yeah and I think Madam Justice Robertson’s conclusions should be our conclusion, which is that e-service can be a useful and viable alternative, as long as its limitations are recognized and steps are taken to protect the privacy of all concerned. It’s not quite a money saving alternative at this point because you still need to satisfy a Court that you’ve taken all traditional steps to serve the person, so you still are going to need to engage the services of a process server perhaps and do some detective work to try to find the person and then satisfy a Court that the alternative that you’re suggesting or substituted service that you’re suggesting, the e-service, would be an effective way of serving.
Sharon Davis: Great, well thanks for listening and thanks for joining me today Paul.
Paul Trudelle: Thank you Sharon and we look forward to hearing from our listeners. You can send us an email at hull.lawyers@gmail.com and be sure to listen to all of our podcasts on Hull on Estates and also Hull on Estate and Succession Planning and be sure to read our blogs which appear daily. Until next time, I’m Paul Trudelle.
Sharon Davis: And I’m Sharon Davis.
Paul Trudelle: Thank you for listening.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
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