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Motion to Validate Service: a Request for Court Order to Confirm Acceptance of Document Service
Question: What should you do if a document is served improperly in Small Claims Court?
Answer: If a document is served in a manner that does not comply with the established rules, you can file a Motion to Validate Service under the Rules of Civil Procedure. By demonstrating that the document reached the intended recipient or that attempts to serve it were hindered, you can ensure your case progresses without unnecessary delays. Freed Legal Services LLP can assist you in navigating this process, helping you protect your legal rights effectively.
A Document Served Improperly May Be Deemed Served
The Rules of the Small Claims Court, O. Reg. 258/98, lack a rule specifically addressing what should happen when the intended recipient receives a document in a manner that falls outside these Rules. Accordingly, in such a circumstance, reference to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, becomes necessary; and whereas the Rules of Civil Procedure provide for validation of service, a Motion to Validate Service may be brought. The relevant Rules of the Small Claims Court as well as the relevant Rules of Civil Procedure state:
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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