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Dispensing with Service Can be Ordered in Appropriate Circumstances

In Ramnarine v. Marino, 2021 ONSC 5935, the plaintiffs brought a motion for substituted service of a statement of claim. The plaintiffs provided evidence of extensive efforts to locate the defendant.

The plaintiffs sought to serve the defendant at his address contained in the Ministry of Transportation database. However, a process server had already attempted to serve the defendant at this address and was told that he did not live there.

In order to permit substituted service, the court must be satisfied that it is probable or that there is a reasonable possibility or that there is some likelihood that the document being served will come to the attention of the party.  Substituted service was not appropriate in this case since the statement of claim would not likely come to the attention of the defendant.

However, Justice Chown held that it would be appropriate to dispense with service under rule 16.04(1) of the Rules of Civil Procedure. Dispensing with service is permitted if the court is satisfied that it is impractical to effect prompt personal service of the document and where it is necessary in the interest of justice.

Justice Chown further held that, if the plaintiffs are going to seek judgment against the defendant, they must alert the judge that service of the statement of claim was dispensed with.