Serving documents

What this stage is

To serve (service)Serve (service)To formally deliver a court document to another party in a way the rules allow. Service lets the court know the other side received the document.Close definition of Serve (service) a document means to deliver it to the other side in a way the rules accept. The court needs to know the other side got it. Otherwise, it would not be fair to hold them to a deadline.

Service happens many times in a case, not just once. The first and most important time is when the plaintiffPlaintiffThe person or business that starts a court case by filing a claim. The plaintiff asks the court to order the defendant to pay.Close definition of Plaintiff serves the plaintiff's claimPlaintiff's ClaimThe court form that starts a Small Claims case (Form 7A). It names the parties, says how much is claimed and why, and comes with a Schedule A.Close definition of Plaintiff's Claim on each defendantDefendantThe person or business being sued. The defendant responds to the claim by filing a Defence.Close definition of Defendant.

What you need to serve, and when

• The claim. The plaintiff serves the issued claim on each defendant within 6 months after it is issued (Rule 8.01(2)).
• The Defence. The defendant serves the defenceDefenceThe defendant's written answer to a claim, saying what they agree with, what they dispute and why. In Small Claims Court it is Form 9A.Close definition of Defence (Form 9A) on the plaintiff and files it with proof of service, within 20 days of being served with the claim (Rule 9.01).
• Settlement conference documents. Each side serves its documents and its List of Proposed Witnesses at least 14 days before the settlement conferenceSettlement conferenceA meeting with a judge or court official to try to settle the case and prepare it for trial. It is held within 90 days after the first Defence is filed (Rule 13.01).Close definition of Settlement conference (Rule 13.03).
• Trial documents. Each side serves its documents and written statements on all parties at least 30 days before trialTrialThe hearing where a judge listens to both sides, looks at the evidence and decides the case. Most Small Claims cases settle before trial.Close definition of Trial (Rule 18.02).
• Motions. A motionMotionA request asking the court to make a decision on a specific issue during a case, such as more time or setting aside a default. It uses Form 15A and must be served at least 7 days before the hearing (Rule 15.01).Close definition of Motion is served at least 7 days before the hearing (Rule 15.01).
• A summons to a witness. A summons to witnessSummons to WitnessA court document (Form 18A) that orders a person to come to court and give evidence. It is used when a witness may not come on their own.Close definition of Summons to Witness is served at least 10 days before the trial date (Rule 8.01(7)).
• A change of address. If your address for service changes, you must tell the court and the other parties within 7 days (Rule 8.09(1)).

How to serve

A claim must be served in one of two ways: personally, or by an alternative to personal service (Rule 8.01(1)). Anything else needs a court order.

Personal service (Rule 8.02)

Personal service means leaving a copy of the document with the right person. Who that is depends on who you are serving:

• An individual: leave a copy with the person.
• A corporation: leave a copy with an officer, a director or another person authorized to act for it. Or leave it with a person at any of its places of business who appears to be in control or management.
• A partnership or a sole proprietorship (a business owned by one person): leave a copy with a partner or the owner. Or leave it with a person at the principal place of business who appears to be in control or management.

Other kinds of defendants have their own rules in Rule 8.02, such as a child, a person who cannot manage their own affairs, a municipality or a government body. Get legal advice if your defendant is one of these.

Alternatives to personal service (Rule 8.03)

If personal service does not work, a claim can be served in one of these ways. Each one counts as served on a different day.

• At the person's home. First try to serve the person personally at their home. If that fails, leave a copy in a sealed envelope addressed to the person with someone who appears to be an adult member of the household. On the same day or the next day, also mail or courier another copy to that address. Service counts on the 5th day after the copy is mailed, or on the 5th day after the courier confirms delivery.
• Registered mail or courier to a person's home. This works only if the person, or someone who appears to be a member of the household, signs for it. Service counts on the date of the signature shown in the delivery confirmation.
• A corporation whose head office cannot be found. If the head office cannot be found at the corporation's last address on record with the Ministry, mail or courier a copy to the corporation at that address. Also mail or courier a copy to each director at the director's address on record. Service counts on the 5th day after the copies are mailed or the courier confirms delivery.
• A lawyer or paralegal who accepts service. A lawyer or paralegalParalegalA person licensed in Ontario to give some legal services, including help with Small Claims Court cases. Paralegals are licensed by the Law Society of Ontario and may represent a party in Small Claims Court. Paralegals charge fees for their work.Close definition of Paralegal for the person being served can accept service by signing and dating an acceptance on the document.

Anything else needs a court order

If none of these ways works, you cannot just pick another one. You must ask the court for an order for substituted service (Rule 8.04). Our post on how to serve a claim and what to do when you can't explains how.

Later documents: mail, courier and email

Documents other than the claim, such as a defence, can also be served by mail, courier or email. They count as served on these days:

• Mail: the 5th day after the day it was mailed (Rule 8.07(2)).
• Courier: the 5th day after the day the courier confirms delivery to the sender (Rule 8.07.1(2)).
• Email: the day it is sent. If it is sent between 4 p.m. and midnight, the next day (Rule 8.08(4)).

How to count days

When a rule gives a number of days, leave out the first day and count the last. If the last day is a holiday, the time ends on the next day that is not a holiday (Rule 3.01). Our defence deadline calculator can help.

Who does the serving

Many people use a process server, a business that serves documents for a fee. You can also serve documents yourself or have a friend do it. The instructions on the Affidavit of Service (Form 8A) say so. Whoever serves the document completes and swears the affidavit.

Proving service

After you serve a document, you prove it with an affidavit of serviceAffidavit of ServiceA sworn or affirmed statement that proves a document was served: who got it, what it was, and when, where and how it was delivered. In Small Claims Court it is Form 8A.Close definition of Affidavit of Service on Form 8A. The person who did the serving fills it out. It says who was served, what was served, when, where and how. When you serve by mail or courier, keep the mailing receipt or the delivery confirmation. The date on it decides when service counts.

An affidavit is a sworn statement. It is usually signed in front of a commissioner for taking affidavitsCommissioner for taking affidavitsA person allowed to watch you swear or affirm that an affidavit is true and then sign it. Lawyers and paralegals can usually do this, and some court staff may too.Close definition of Commissioner for taking affidavits. Small Claims Court and ServiceOntario staff who are commissioners do this at no charge. A lawyer, a licensed paralegal or a notary public can also commission it. You then file it with the court.

Keep your proof safe. If the defendant never responds, you will need your Affidavit of Service to ask for default judgmentDefault judgmentA judgment made because the defendant did not file a Defence in time, without a trial. For a debt or fixed amount, it is requested on Form 11B (Rule 11.02).Close definition of Default judgment.

What you need to do

1. Make enough copies of the issued claim: one for each defendant, one for you, and one for the court file.
2. Serve each defendant personally (Rule 8.02). If that does not work, use an alternative in Rule 8.03. For any other method, ask the court for an order first (Rule 8.04).
3. Serve every defendant within 6 months after the claim was issued.
4. Keep proof of how and when you served: a mailing receipt, a delivery confirmation or a signed acceptance.
5. Have the person who served complete Form 8A for each defendant.
6. Have the affidavit sworn or affirmed, then file it with the court officeCourt officeThe office at the courthouse where you file documents, pay fees and ask about your case. Staff can explain procedures but cannot give legal advice.Close definition of Court office.
7. Write down the date service counts for each defendant. That is the day their 20-day clock starts. For some methods it is the 5th day after mailing, not the day you sent it.

The deadlines at this stage

• Serve the claim: within 6 months after it is issued (Rule 8.01(2)). If you cannot serve in time, you may be able to ask the court for more time.
• Defendant's response: 20 days after being served (Rule 9.01). Use our defence deadline calculator to estimate it.

Forms

• Form 8A: Affidavit of Service

Common mistakes

• Serving the wrong version. Serve the issued claim, with the court file number, not your draft.
• Using a method that is not allowed for that document. A method that works for later documents may not work for the claim.
• Not keeping proof. Without an Affidavit of Service, the court may not accept that service happened.
• Missing a defendant. Each defendant must be served, and each needs their own proof.
• Letting the 6 months slip by. Serve early, in case the first try does not work.
• Counting from the wrong day. A mailed or couriered copy counts as served on the 5th day, not the day you sent it. Write down exactly what happened and when.

What happens next

Once a defendant is served, they have 20 days to respond. If they file a Defence, read Responding to a claim to see what happens. If they do not respond, see Default judgment.

Need to go back? See Starting a claim (Form 7A).