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Motion to Validate Service: a Request for Court Order to Confirm Acceptance of Document Service
Question: Can I ask the Ontario Small Claims Court to validate service if my documents were served improperly but the defendant still received them?
Answer: Yes, Ontario courts can validate service where a document came to the person’s notice or would have except for evasion under Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 16.08, and Small Claims may look to these rules by analogy under Rules of the Small Claims Court, O. Reg. 258/98, Rule 1.03(2). Access Ontario Legal Services provides Ontario paralegal services to help prepare and file a Motion to Validate Service with supporting evidence so your Small Claims matter can proceed without avoidable delay.
A Document Served Improperly May Be Deemed Served
Absent a specific rule in the Rules of the Small Claims Court, O. Reg. 258/98 dealing with the scenario where the intended recipient receives a document in a manner outside of the said Rules, reference to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the provisions for validating service via a Motion to Validate Service become necessary. The relevant sections from the Rules of the Small Claims Court and the Rules of Civil Procedure are:
Matters Not Covered in Rules
1.03 (2) If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
Validating Service
16.08 Where a document has been served in a manner other than one authorized by these rules or an order, the court may make an order validating the service where the court is satisfied that,
(a) the document came to the notice of the person to be served; or
(b) the document was served in such a manner that it would have come to the notice of the person to be served, except for the person’s own attempts to evade service.
Conclusion
Filing a Motion to validate service can help to ensure that a case proceeds without unnecessary delays. In a Motion to validate service, it is beneficial to show that there were efforts to serve documents correctly and to provide any available evidence to support the request for validation.
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