Canada: Status Update: Social Media And The Service Of Documents

State Representative Jeff Leach of Texas recently proposed a bill that has generated significant discussion about the utility of social media in litigation proceedings. The yet untitled bill, HB No. 1989, proposes to allow substituted service in Texas through a social media website if a court finds that the social media account belongs to the defendant, is regularly accessed, and such service is likely to result in actual notice.

Texas is attempting to create with legislation a process that courts in Canada, Australia, New Zealand and the United Kingdom have developed through common law. Generally, courts in these jurisdictions will allow substitutional service through social media when all other methods of serving a party are exhausted. Courts consider whether the account belongs to the proper individual, and whether the account is frequently used, such that social media can affect proper notice.

Canadian Rules of Civil Procedure

In Canada, the ability for litigators to serve parties with substitutional means is enshrined in the rules of court both federally and for each province.2Despite some nuance between jurisdictions, a brief canvass of the rules in Alberta, Ontario, and British Columbia will show that the approach is generally analogous.

A typical example is rule 11.28 of the Alberta Rules of Court,2 whichstates that an application must be supported by an affidavit that sets out (i) why service is impractical, (ii) proposing an alternative method of service (such as Facebook private messaging), and (iii) stating why the alternative method of service is likely to bring the document to the attention of the person to be served.

The language found in rule 16.04 of the Ontario Rules of Civil Procedure3provides a nearly identical mechanism for substitutional service:

Where it appears to the court that it is impractical for any reason to effect prompt service of an originating process or any other document required to be served personally or by an alternative to personal service under these rules, the court may make an order for substituted service or, where necessary in the interest of justice, may dispense with service.4

Master Dash in Chambers v Muslim (2007)5clarified that the Ontario rule requires the applicant to provide proper evidence that (i) all reasonable steps of service have been taken, and (ii) the proposed method of substituted service will have "some likelihood" or a "reasonable possibility" of bringing the action to the attention of the party to be served.

Rule 4-4(1)-(3) of the British Columbia Supreme Court Civil Rules6uses slightly different language to achieve the same result, providing a court with the capacity to allow substitutional service if the party being served (i) cannot be found after a diligent search, or (ii) is evading service of the documents.

Therefore, despite some nuance in rules between jurisdictions, the overall Canadian approach to substitutional service is typically congruent. Further, the courts have extended application to include social media. Specifically, when traditional modes of service are impractical, and social media is reliable, courts have the capacity to grant substitutional service through social media.

Canadian Jurisprudence

Most applications requesting an order for substitutional service are not reported and there is little Canadian jurisprudence discussing social media and substitutional service. However, the following two reported Alberta cases do provide some the context within which substitutional service has been granted.

In Knott Estate v Sutherland7 the Alberta Court of Queen's Bench considered the use of Facebook as a means of substitutional service in a medical negligence case. The defendant was a resident of the University of Alberta Hospital who had assisted in caring for Carol Diane Knott, who had passed away while at the hospital. The administrator of her estate brought this action claiming negligence. The plaintiffs brought an application for an order for substitutional service. Succeeding in this application, Master Breitkreuz ordered that the plaintiffs could serve the defendant, Abdulmutalib Al-Masloom, through a public notice in the Edmonton Journal, providing a copy of the statement of claim to the University of Alberta Hospital, and by sending a notice of the action to the Facebook profile of Abdulmutalib Al-Masloom.

Similarly, in 128005 Alberta Ltd. v Zaghloul8 the Alberta Court of Queen's Bench considered the use of Facebook as a means of substitutional service in a case dealing primarily with fraudulent conveyance. In this instance, the plaintiff brought two actions against Hatim Zaghloul; first, an action for a debt of $120,000.00 owed through a promissory note, and second, an action for the fraudulent conveyance by Hatim Zaghloul of a house to his wife. The plaintiff obtained default judgment for the first action on February 16, 2010. To enforce the default judgment the plaintiff commenced the fraudulent conveyance action challenging the transfer of title to the home. The plaintiff obtained an order for service ex juris and substitutional service, allowing service on Hatim Zaghloul by email and Facebook private messaging.

Canadian courts have shown a willingness to allow social media as a means of substitutional service in the course of litigation. As will be shown, this trend not only domestic, but international in scope.

International Jurisprudence

Courts in Australia, New Zealand, and the United Kingdom have also ordered substitutional service through social media. In Australia, the Capital Territory Supreme Court in MKM Capital Pty Ltd. v Corbo & Poyser9allowed substituted service of default judgment on certain mortgagees through a private message on Facebook. Personal details in the Facebook page were used to confirm the identity of the party being served. The High Court of New Zealand in Axe Market Gardens Ltd. v Axe10 granted leave for service via Facebook on an individual whose present whereabouts were not known, but whose frequent access to the internet was proven. In AKO Capital LLP & Another v TFS Derivatives & Others11 the United Kingdom High Court allowed the claimant to serve a claim on an individual defendant via Facebook. The Court in this case had evidence that the Facebook profile belonged to the defendant and that it was frequently active.

As shown above, common law countries are increasingly permitting substitutional service through social media. Common drivers for this trend include the difficulty of normal modes of service as weighed against the prevalence and increasing reliability of social media.

Tips for Litigators

Both domestic and international courts are becoming more inclined to grant an order using social media for substitutional service. However, obtaining such an order requires certain considerations that may not exist when employing traditional means. Counsel seeking such an order should consider the following:

  1.  Ensure that all normal methods of service are exhausted, and that such exhaustion is documented. This will lend evidence to the argument that traditional methods of service are proving ineffective.
  2. Ensure that the social media account does belong to the party you are intending to serve. This is becoming increasingly significant as the use of social media grows, resulting in multiple accounts with the same or similar identifying information. Such evidence may include an accurate name, location, matching birthdates and a confirmation of identity through a posted picture.
  3. Provide evidence that the party to be served uses the social media account within a reasonable amount of time. Being able to establish the frequency of use will lessen the courts concern that the use of social media will prove unsuccessful. This may include evidence of frequent Facebook updates, acceptance of friend requests, or frequent Twitter posts.

These factors have been discussed in context above. The respective rules and case law provide a basic framework for those seeking an order of this type. However, it is important to note that this area of law is still being developed, and courts hearing such an application will make their determination as to whether social media is an acceptable means of service on a case-by-case basis.

* Jeremy Busch-Howell is an Articling Student at McCarthy Tétrault.


1. Alberta Rules of Court, Alta Reg 124/2010, r 11.28; Supreme Court Civil Rules, BC Reg 168/2009, r 4-4(1)-(3); Court of Queen's Bench Rules, Man Reg 553/88, r 16.04(1); Rules of Court of New Brunswick, NB Reg 82-73, r 18.04; Rules of the Supreme Court, SN 1986, c 42, Sched D, r 6.04; Rules of the Supreme Court of the Northwest Territories, NWT Reg. R-010-96, r 38; Nova Scotia Civil Procedure Rules, NS Civ Pro Rules 2009, r 10.10, 31.10; Rules of Civil Procedure, RRO 1990, Reg. 194, r 16.04; Rules of Civil Procedure, PEI Rules, r 16.04; Saskatchewan Queen's Bench Rules, Sask QB Rules, r 23; Judicature Act, Yuk Reg OIC 2009/65, r 12; Federal Courts Rules, SOR/98-106, r 136; Rules of the Supreme Court of Canada, SOR/2002-156, r 20(9).

2. Ibid.

3. Ibid.

4. Ibid.

5. 87 OR (3d) 784.

6. Supra note 1.

7.  [2009] AJ No 1539.

8. 2012 ABQB 10.

9.  (12 December 2008), Capital Territory, No SC 608 of 2008 (ACTSC).

10.  (16 March 2009), New Zealand, CIV-2008-485-002676 (NZHC).

11.  (17 February 2012), United Kingdom and Wales, unreported (HCJ).

To view original article, please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.