STEPHEN DAVID SMITH RRSP PLAN NUMBER 143059 v WALKER

The Applicants applied to validate service of a Statement of Claim, an Amended Claim and Statutory Notices that had been taped to a child’s toy on the property. The Applicants relied on Rule 11.3, which allows service in accordance with a contractual agreement between the parties.

The Applicants relied on a mortgage clause which allowed notice to be given by “placing the same” on the land if it was unoccupied. The Court found that the clause was a boilerplate notice provision and did not constitute an agreement for service of legal process within the meaning of Rule 11.3. Properly interpreted, Rule 11.3 requires clear language demonstrating that the parties agreed to a mode of service intended to provide actual notice. The clause in question was found to undermine the purpose of service and could not displace the requirement for meaningful notice.

Pursuant to Rule 11.27, a Court may validate service if it is satisfied the method used brought or was likely to bring the document to the person’s attention, or where service was evaded. The Court refused to validate service because there was no evidence that the respondent received actual notice or was evading service. The Applicants’ Affidavit acknowledged that the Respondent’s whereabouts were unknown and did not set out sufficient efforts to locate him. The Court emphasized that validation of service is not a substitute for substitutional service, and that where proper service cannot be effected, an Application for substitutional service is the appropriate remedy.

In the result, the Court declined to validate service because it undermined the practical and substantive purpose of service, which is to provide actual notice.