Matthew Dylag, PhD
Assistant Professor of Law, Schulich School of Law at Dalhousie University
Fundamentally, the Rules of Civil Procedure aim to strike a balance between, on one hand, efficiency and, on the other, justice. This balance needs to be carefully weighed because, as noted frequently by judges, lawyers, and academics, courts cannot grant justice if processes are so slow that it takes years for cases to meander their way through the system or so expensive that people cannot afford to access the system. To this end, it makes sense to periodically revisit the rules and ask if their current iteration achieves this balance. The current version of Ontario’s Rules of Civil Procedure came into effect in 1985 and it is clear that there are problems with it. Cases are taking way too long to make their way through the system and litigation is far too expensive for the vast majority of Ontarians. However, when revising the rules care should be taken not to swing too far in the opposite direction. This seems to be what is happening with the current Civil Rules Review which has allowed barely ten weeks for the submission of comments.
The overarching aim of this review is evident in their proposed changes to rule 1.04, which sets out the general principle for interpreting the rules. The current version states that the rules shall be construed liberally to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. This is the lens in which all other rules must be understood, and it is important that the word “just” appears in it. Courts must be able to make determinations in the interest of justice. The Civil Rules Committee, however, proposes that this foundation principle be replaced by a series of “guides” – a watered-down framework – that focus on practical results, cost-effective proceedings, and the efficient use of court resources. All of these are important, but it is telling that these guides never once mention justice.
A good example of how the proposed rule changes may sacrifice justice in the name of expediency are evident in the suggested changes for the service of originating processes. The purpose of service is to give the Defendant notice of the proceeding so that they have an opportunity to respond to the allegations made against them. This satisfies a key principle of fundamental justice as a legal system cannot be considered fair if one of the parties has no knowledge that a claim has been brought against them. With this in mind, the Civil Rules Committee is correct to note that service can be expensive and also correct to note that Defendants should not be given loopholes to avoid service. Having been a Plaintiff side litigator for six years I know how frustrating it is when Defendants are actively evading service and how expensive it can be to track them down.
The Committee makes four proposals regarding service. The first two seem reasonable enough and might address some of the efficiency problems without sacrificing justice. These are imposing a rule-based obligation on the Defendant to accept service when it comes to their attention and enforcing this obligation through a monetary penalty. Justice requires that the Defendant be given notice of a proceeding against them. It does not require the Plaintiff jump through hoops to chase them down. Thus, a positive obligation on the Defendant does not offend principles of fundamental justice. My concern with these two proposals, however, are that they may result in greater inefficiencies since proving a breach of this obligation and the subsequent imposition of a monetary penalty would require a motion adding yet another procedural step to an already burdensome process. With that said, if the threat of monetary sanction will influence a Defendant’s behaviour (although I am skeptical of this) and reduce the instances of service evasion this obligation is warranted.
It is, however, the third and fourth proposal that are problematic from a justice perspective. These are allowing service of an originating process by way of email without a judicial order or the consent of the Defendant, and allowing service on an unretained lawyer who has been communicating with the Plaintiff about the subject issue.
To effect service by email the Civil Rules Committee suggests that the Plaintiff would have to send a copy of their claim to the Defendant’s last known email address, obtain a “delivery receipt” from their own email service provider, and send a copy of the claim by ordinary mail to the Defendant’s last known physical address. The Civil Rules Committee states that email, when combined with physical mail, is likely to be as effective as the various alternatives to personal service outlined in the current rules. I disagree. Neither email nor regular mail provides the Plaintiff with actual knowledge that the Defendant has indeed received a copy of the claim. They are proxies and can be justified as alternatives to actual knowledge in specific circumstances, but those circumstances should be justified to a judge. For example, I have at least three email accounts from previous institutions that I no longer check and, having recently moved, it is unlikely that a potential Plaintiff would know where to send a copy their claim by regular mail. Even if a Plaintiff used my current email address it is likely that an unsolicited email with an attachment would be flagged by my spam filters and deleted. I receive lots of spam and unsolicited emails that I ignore. The Civil Rules Committee notes that under the current rules, a Plaintiff may serve a Defendant by leaving a copy of the document with an adult member of their household and states this is an equivalent comparison to their proposal. However, by leaving a claim with an adult, a process server has an opportunity to confirm that the Defendant does indeed reside at that address. In other words, the Plaintiff has actual knowledge that someone in the Defendant’s household did in fact receive the claim. Email provides no guarantee that the Defendant actually received the claim.
The next proposal of the Civil Rules Committee is equally problematic as it would place an unjustified burden on someone who may have little to no connection with either the matter or the Defendant. The Civil Rules Committee states that a Plaintiff should be allowed to serve the Defendant by giving a copy of the claim to (presumably) the Defendant’s lawyer who has been communicating with the Plaintiff on the subject matter in issue, regardless of whether that lawyer has been retained to accept service or not. In turn that lawyer would have an obligation to provide the claim to the Defendant and to confirm to the Plaintiff that they have done so. This basically shifts the cost of service from the Plaintiff to a lawyer who may have nothing to do with this matter and may be in no better position to find the Defendant than the Plaintiff. For example, a lawyer may have acted for a Defendant in a single real estate transaction and may have communicated with the Plaintiff about a potential legal issue connected with that transaction. The Plaintiff may then wait two years before deciding to sue the Defendant. Is this lawyer now required to track down a former client who, in the intervening two years, may have disappeared? While justice requires the Defendant be given notice of a claim, justice does not require the Plaintiff be granted the most convenient service mechanism possible. Indeed, justice may require that the Plaintiff spend a little time and money to ensure that one of the most important steps of the litigation process has been done properly. Further, there is an unexamined ethical dimension here to which the Civil Rules Committee is silent on. Although the proposal states that the served lawyer will not be deemed to be acting for the Defendant in the litigation, it still imposes on the lawyer certain responsibilities to both the justice system and to their clients. What if these responsibilities conflict? How should a lawyer deal with conflicting instructions? Can a lawyer simply hand a former client litigation paperwork and wipe their hands clean of it? None of these questions are answered by the Civil Rules Committee.
What will the result of these proposed changes be? Will it save the Plaintiff some time and money? Probably. But it will also lead to an increased number of motions to set aside default judgements because certain institutional litigants (e.g. debt collection companies) will take advantage of these new rules and use them to claim effective service knowing full well that the Defendant has not received any actual knowledge of the claim. This will increase the burden on both the Defendant and on court resources. These proposed changes understand the rules through a transactional lens that promotes efficiency above all else and while they do attempt to address real challenges, they also risk forgetting that the court’s primary role in society is to ensure that justice be done.
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