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Motion to Validate Service: a Request for Court Order to Confirm Acceptance of Document Service
Question: What can I do if I served Small Claims Court documents improperly in Ontario but the other party still received them?
Answer: In Ontario, if service didn’t follow the Small Claims Court rules but the document still came to the recipient’s notice, Wennekers.Legal™ can help you consider bringing a motion to validate service under Rules of the Small Claims Court, O. Reg. 258/98 and Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to reduce delay and keep the case moving. As Legal Services in Ontario, Wennekers.Legal™ can help you organize proof of notice, document your attempts to serve correctly, and prepare the motion materials needed for court review.
A Document Served Improperly May Be Deemed Served
When the intended recipient receives a document in a manner that falls outside the Rules of the Small Claims Court, O. Reg. 258/98, a rule to address this situation is lacking; and consequently, reference to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is necessary. Under the Rules of Civil Procedure, validation of service is permitted and a party may initiate a Motion to Validate Service. The relevant sections in both 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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