When people think of process servers, they tend to place them into the same category as shoplifters, repo-men or prostitutes. They have a questionable occupation, at least from a moral perspective. This idea likely stems from the stereotype created by Hollywood movies. A process server is a bad person because they are helping someone commence a legal claim against someone else, and oftentimes the claimant who starts the action is labelled as the bad party because they are the side that is starting the fight.
But for some reason, people have the idea that being served a claim means that they are being called out and have already been ruled against. They are labelling the process server as being the instigator, whereas this person is only acting in the role as the messenger.
What is the Magna Carta?
The Magna Carta was a document written in England in the year 1215, under the rule of King John. It is considered as the first written law, which outlines the basic instructions of applying due process. As the Canadian Legal system is still based on British framework, the Magna Carta is still considered as the first chapter of our legal statutes. Therefore, the occupation of the legal process server is over 800 years old.
What is a Process Server?
This is a person who has been hired to serve or deliver legal documentation from one party to another. There are no special license or certification requirements for who this person can be, as long as they are over the age of 18. A process server is, however, required to follow specific legal Rules of how the job is to be completed.
What is the purpose of serving legal paperwork?
The primary purpose for legal paperwork being formally served is simply for communication. When you are served a legal claim, you are being invited to participate in the conversation.
This may be compared to receiving an invitation to a wedding. It is firstly advising you that a wedding is happening and gives you the names of the people getting married, then provides you with logistical details such as the date, time and location of the event. The same as you are requested to reply to a wedding invitation, a legal claim is asking you to reply with a response to the question it is asking you.
Fun Fact: what does RSVP mean?
Traditional wedding invitations often show the acronym 'RSVP' on the bottom, meaning that a response is expected. RSVP represents the French phrase 'Répondez s'il vous plaît' which in English translates to 'Respond, if you please'. The general use of this acronym on invitations first started circa 1845 in France with parties of the nobility.
Compared to today's internet influencers, the general public of the mid 1800's were looking at the rich important figures of their location to set societal trends. Every day citizens, wishing to be like their royal celebrities, started using the acronym RSVP on their party invitations to imitate their idols. This habit then immigrated to Canada with European colonists, and has continued to be used in modern times, when the event hosts wish to appear as traditional, formal and high class.
The acronym RSVP has also evolved perhaps incorrectly from an English (or French?) language perspective. It is no longer used solely with the intention of evoking a response from a person who has been invited to a specific event, but now it also used to indicate an attendee is requested to make reservations for an event that they would like to attend, when they have not been formally invited.
The purpose of RSVP remains the same as when it became commonplace in 1845: so that the host is aware if their invitee will be attending the event and so they can plan the details to include them.
What should I do if I was served with legal paperwork?
Most legal matters have a designated time limits that need to be followed. The worst thing a person can do when served with legal paperwork is to ignore it. For example, in the Ontario Small Claims Court, a defendant is given 20 calendar days from the date of service to provide a legal response to a claim. This timeline does count weekend days, but does not include statutory holidays.
As soon as a claim is received, you should first read it through entirely and ensure you understand who sent it to you and what is involved in their claim. Next you should try to educate yourself on the Ontario Small Claims Court legal system. A simple Google search should lead you to the Ontario government's website: www.ontariocourts.ca which does provide step-by-step instructions of how you should respond to the claim. Legally, you are able to represent yourself in Small Claims Court should you choose to. However, you may wish to review the claim with a lawyer or paralegal and consider hiring them to represent you, especially if it is for a significant amount of money.
To find a local area legal professional that deals in the subject matter of your claim, the Law Society of Ontario does have a directory that can help you locate a representative: www.lso.ca. Should you be in a financially challenging situation, you may qualify for free legal assistance through Legal Aid Ontario: www.legalaid.on.ca.
If you decide to simply ignore the legal paperwork you have been served and not file a response, this may just make the situation a lot more complicated and a bigger detriment to you in the future. As long as the Plaintiff can prove you were served the legal documentation, which is evidenced by the filing of an Affidavit of Service, then there is a risk of a judge awarding an ex-parte order against you. Because you didn't file a defense or respond to the paperwork, the court will assume that you are not interested in providing your side of the argument.
In this case, you may not even be aware that there was a judgment awarded against you for months or even years until action is taken to enforce the order. You may be surprised to discover your employment wages are being garnished, or you may discover a lien is preventing you from selling your property.
To stop these actions, you will need to revisit and acknowledge the original claim that you previously ignored. However, the legal process to request the judgment be set aside is much more complicated and costly than had you just responded to the original claim in the first place.
So if you are served with legal paperwork, would you rather just pay attention to and deal with the monster now? Or would you rather wait until it's ten times bigger and a judgment enforcement has now gotten your attention?
A Stall Tactic
The primary reason a person may deliberately evade service of legal documentation is in the hopes that their claim will expire. A Limitation Period is a set time limit for a legal action to be started, that is generally measured from the date which the incident originally occurred.
For example, your kid smashed your neighbour's window with a baseball on June 1, 2022. Therefore, if your neighbour wishes to sue you for the cost of the damages in the Ontario Small Claims Court, he has a limit of 2 years from June 1, 2022 to do so, which includes serving you their claim.
If they waits until May 15, 2024 to file their claim and try to get you the paperwork, you could choose to deliberately avoid receiving this for the remainder of May. After June 1, 2024, your neighbour is out of luck and can no longer bring a legal claim against you and you are not legally obligated to pay for his broken window.
Once a Limitation Period is up, it is very difficult to try to waive this and re-visit an argument.
Ignorance
The other reason a person may be deliberately avoid being served is for self-preservation. They have the mindset that if an issue is not acknowledged, it does not exist. If you just ignore the legal paperwork, the legal claim will eventually just go away. There is no monster, I don't know what you're talking about.
Ignorance is a common reaction in Family Law, when one partner wants to get a divorce and the other wants to try to reconcile. By postponing the start of the claim, the former may have more time to stop it from happening at all.
When a recipient is ignoring service, this can then lead to the ante being upped in the game. A process server is hired for the specific job of ensuring a person is in receipt of the legal paperwork they have been hired to deliver.
The first and easiest step a server will take to complete this task is to simply knock on the door of the defendant's known residential address, then hand them the paperwork directly to them when they open the door. This method is known as 'personal service'.
If this manner is attempted a few times and unfruitful, the server will then research what other places the defendant may be physically located, such as their workplace, a frequented restaurant, or a church. Although it may cause personal distress and embarrassment to the recipient to receive legal paperwork in a public place, they need to recognize this occurred because it is likely a secondary location that has had to be used because the server was not able to serve them at their residential address.
Should several attempts at personal service be made unsuccessfully, then the claimant can investigate options of sub-service, such as serving the paperwork through registered mail or email. Depending on the area of law involved, there are further rules that need to be followed to ensure service is completed correctly.
No contact information
Should a process server have no confirmed contact information for the person who they are serving, then they are permitted to use creative or morally questionable tactics to obtain this information if needed. They may enlist the services of a Private Investigator who has specialized skills and resources.
If there is already a legal matter in place, and the paperwork being served in relation to that original claim, then a Private Investigator has the authority to request a credit report be pulled on the recipient to provide current contact information if this has changed from what was placed on the original paperwork.
A Private Investigator may also be able to obtain contact information from a person's workplace, family member, friend or community group. Information posted on Social Media is considered as public domain. Therefore, a person's address may be shown in a picture that they have posted on their Facebook wall.
What if you don't take the paperwork being handed to you?
As long as the server knows you are the named recipient and they make eye contact with you, then Case Law has confirmed they are permitted to throw the paperwork at your feet to serve you. If they have a picture of you to recognize their face, they also do not necessarily need to verbally confirm your identity although this is not a bad practice for a process server to have.
After you have been served, the process server will be required to complete an Affidavit of Service which is commissioned and filed with the court. When a document is commissioned, this means that the server swears that they did complete service correctly. This is no different from a witness being sworn to give testimony during a court proceeding.
If it is proven that a server did not properly deliver the paperwork as they have stated, then this could be considered as perjury and the server could face consequences. Nevertheless, if their Affidavit is not accepted by the court this could jeopardize the entire legal claim.
Is a legal claim always detrimental?
No. This is the false idea that people have that when they are served a claim, a judgment has already been made. Being served legal documentation is only the invitation to talk about a legal matter.
Sometimes after all parties have presented their side of the story, the defendant may come out as the winner. For example, if your neighbour cannot prove through evidence that it was your kid that threw the baseball that broke his window, his claim may get dismissed. Maybe you have security camera video showing it was your neighbour himself who broke his own window in the hopes of blaming your kid and getting money out of you.
The lesson: If you are being served with legal paperwork, your best option is to simply accept this, as it is only an invitation to join the legal game. There is no need to shoot the messenger.
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Agent K Private Investigations Inc. can help you locate the receipient of your legal claim and also help direct you to a competent process server. www.agentkpi.ca
