From the recent National Post article espousing the use of social media by insurance defence lawyers in personal injury cases to an article on our blog where we had discussed how social media played a role in the preclusion of the enforcement of a settlement agreement, social media’s use as an invaluable tool in a lawyer’s tool box continues to grow.
However, a less glamorized but arguably just as important use of social media has been to help plaintiffs track down and commence proceedings against hard to find or hard to serve defendants. In Ontario, all litigation must be commenced by way of a Notice of Application, a Notice of Action or a Statement of Claim. Under the Rules of Civil Procedure, these originating processes must be served personally (or by way of alternative to personal service) on the defendants before litigation can continue. However, in our practice we regularly see Plaintiffs who are either unable to provide us with a current physical address for the Defendants or encounter Defendants who take measures to evade service.
When service as prescribed by the Rules of Civil Procedure is evaded and/or not practicable, the Plaintiff is required to bring a motion for substituted service of the Notice of Application or Statement of Claim. In considering whether or not to grant this order, one of the factors considered by the court is whether the alternate method proposed by the Plaintiff will actually result in the Defendants being notified of the claim. In the past, the most common method of substituted service has been service by mail. However, electronic addresses such as e-mails and increasingly, Facebook, have been ordered as alternative methods to effect service.
CNN recently published an article titled “Process servers can find you on Facebook” where they reported on this trend in the United States. Service by way of Facebook and other social media present another avenue that creative lawyers may use to serve the originating process and further their client’s case against hard to locate defendants.