Following a Summary Trial, which the Defendant did not attend or provide evidence for, Armstrong J. issued an Order dividing certain matrimonial property (the Order). The Defendant appealed, arguing that the Order should be set aside for improper service and lack of notice of the Summary Trial.

Citing the principle that a fair process must guide the exercise of discretion involved in deciding whether to set aside an order because of insufficient notice, Armstrong J. set aside the Order on the basis that the Defendant was not properly served with notice of the Summary Trial.

Justice Armstrong found that the Plaintiff, who had previously obtained an order for substitutional service (the Service Order), did not comply with the requirements for service under that order or Rule 11.21, which allows for service of documents, other than commencement documents, by e-mail.

Justice Armstrong noted that three conditions must be satisfied to effect for service by e-mail: (1) the party receiving service must have provided an address to which information in respect of an Action may be transmitted; (2) the information sent by e-mail must be received in a form that is usable for subsequent reference; and (3) the party serving electronically must receive a confirmation that the transmission to the party being served was successfully completed.

The Court found the Plaintiff failed to send documents by regular mail as required by the Service Order and did not receive confirmation of successful electronic transmission. Despite the Defendant’s unreasonable refusal to update her contact information, the interests of fairness necessitated setting aside the Order to ensure the Defendant could respond to the allegations regarding the parties’ matrimonial property. The matter was directed to proceed at a Rule 4.10 case conference to address outstanding issues.