An unnamed Toronto actress has sued Harvey Weinstein, Walt Disney and Miramax on allegations of sexual assault from about 20 years ago. The problem is that Weinstein's whereabouts are unknown and the actress was unable to serve Weinstein with notice of the lawsuit.
The general rule, under the Rules of Civil Procedure (the "Rules"), is that when a party initiates a lawsuit (the "plaintiff"), with an originating document such as a statement of claim, the statement of claim has to be served personally on the accused party who will be defending the claim (the "defendant"). For example, if it is an individual who is being served, a copy of the document must be left with the individual, or where a corporation is being served, a copy of the document must be left with an officer, director or agent of the corporation or someone who appears to be in control or management of the business.
There are a few alternatives to personal service listed in the Rules. Under the alternative rules, the standard to service notice is a difficult bar to meet. For example, a party could serve on the defendant's lawyer, but notice is only effective if the lawyer endorses the document. Alternatively, a party could mail the originating document to the defendant's last known address, but the defendant will have to acknowledge receipt of the documents.
The question is, what happens when there are obstacles restricting a party from being able to personally serve documents on a defendant?
Under the Rules, there is a procedure in special circumstances that allows the plaintiff to ask the court to grant him or her "substituted service". A court will only grant substituted service where it appears that it is impractical for any reason to effect prompt service of an originating document required to be served personally or by alternative to personal service. The court has the power to grant an order for substituted service, whereby the court will specify when service, in accordance with the order, is effective.
The actress's lawyer has made multiple attempts but has failed to serve Weinstein with notice. The Superior Court of Justice issued an order for substituted service. This means that the actress now has alternative methods to serve notice on Weinstein. The requirements for substituted service are easier to meet, such as serving notice on the lawyer of record by mail or fax, serving it on the party by mail or serving by e-mail.
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