Starting a Small Claim (20:V): Difference between revisions
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→F. Serving a Notice of Claim
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== F. Serving a Notice of Claim == | == F. Serving a Notice of Claim == | ||
A copy of the filed Notice of Claim '''together with a blank Reply form''' (available from the registry) must be served on each | A copy of the filed Notice of Claim '''together with a blank Reply form''' (available from the registry) must be served on each defendant (Rule 2(1)). A claimant has 12 months from the date of filing to serve the defendants (Rule 2(7)). If more time is required, the claimant can apply to the registrar for an extension (Rules 2(7), 16(2)(a), and 16(3)). | ||
The permissible methods for serving a defendant depend on who the | The permissible methods for serving a defendant depend on who the defendant is. The table below sets out how each category of defendant can be served. If a defendant is evading service or, after a diligent search, cannot be found, a claimant may apply to a judge for an order for substitutional service. | ||
{| class="wikitable" | {| class="wikitable" | ||
| Line 290: | Line 290: | ||
! Defendant !! Permitted Methods of Service | ! Defendant !! Permitted Methods of Service | ||
|- | |- | ||
| Individual Over 19 Years | | Individual Over 19 Years Old (Rule 2(2)) || | ||
*Personal service | *Personal service | ||
*Registered mail to residence | *Registered mail to residence | ||
|- | |- | ||
| Individual Under 19 Years | | Individual Under 19 Years Old (Rules 2(6) and 18(2)) || | ||
*Personal service on the minor’s mother, father, or guardian | *Personal service on the minor’s mother, father, or guardian | ||
*Personal service on another person as directed by a judge upon application | *Personal service on another person as directed by a judge upon application | ||
| Line 300: | Line 300: | ||
| Individual outside BC || | | Individual outside BC || | ||
*See “Individual Over 19 Years Old” or “Individual Under 19 Years Old” | *See “Individual Over 19 Years Old” or “Individual Under 19 Years Old” | ||
*Defendant has 30 days to | *Defendant has 30 days to respond (Rule 3(4)) | ||
|- | |- | ||
| BC | | BC Corporation (Rule 2(3)) || | ||
*Leaving a copy at the '''delivery address''' for the registered office | *Leaving a copy at the '''delivery address''' for the registered office | ||
*Registered mail to the '''mailing address''' for the registered office | *Registered mail to the '''mailing address''' for the registered office | ||
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| Extraprovincial Corporation || See Rule 2(4) | | Extraprovincial Corporation || See Rule 2(4) | ||
|- | |- | ||
| Unincorporated Company (Proprietorship) | | Unincorporated Company (Proprietorship) (Rule 2(2)) || | ||
*Personal service on proprietor | *Personal service on proprietor | ||
*Registered mail to proprietor’s residence | *Registered mail to proprietor’s residence | ||
|- | |- | ||
| Unincorporated | | Unincorporated Company (Rule 2(5)) (Partnership) || | ||
*Personal service on a partner | *Personal service on a partner | ||
*Personal service on a receptionist or manager at the place of business | *Personal service on a receptionist or manager at the place of business | ||
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| Company outside BC || See Rule 18(6.1) | | Company outside BC || See Rule 18(6.1) | ||
|- | |- | ||
| Strata | | Strata Corporation (See ''Strata Property Act'', SBC 1998, c 43, s 64) || | ||
*Personal service on a council member | *Personal service on a council member | ||
*Registered mail to its most recent mailing address on file in the Land Title Office | *Registered mail to its most recent mailing address on file in the Land Title Office | ||
|- | |- | ||
| | | Society (See ''Society Act'', RSBC 1996, c 433, s 12; Rule 18(3)) || | ||
*Personal service on anyone at the address for service | *Personal service on anyone at the address for service | ||
*Personal service on a director, officer, receiver manager, or liquidator | *Personal service on a director, officer, receiver manager, or liquidator | ||
*Registered mail to the address for service | *Registered mail to the address for service | ||
|- | |- | ||
| Unincorporated | | Unincorporated Association (Rule 18(5))|| | ||
*Personal service on an officer | *Personal service on an officer | ||
*Registered mail to the registered office | *Registered mail to the registered office | ||
|- | |- | ||
| Incorporated | | Incorporated Association (See ''Cooperative Association Act'', SBC 1999, c 28, s 28) | ||
Housing Cooperative | Housing Cooperative | ||
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*Personal service on anyone at the registered office | *Personal service on anyone at the registered office | ||
|- | |- | ||
| Trade | | Trade Union (Rule 18(5)) || | ||
*Leaving with the business agent | *Leaving with the business agent | ||
|- | |- | ||
| | | Municipality (Rule 18(1)) || | ||
*Personal service on the Clerk, Deputy Clerk, or similar official | *Personal service on the Clerk, Deputy Clerk, or similar official | ||
|- | |- | ||
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*Personal service on a receptionist at 800 – 808 Nelson Street, Vancouver, BC V6Z 2L5 | *Personal service on a receptionist at 800 – 808 Nelson Street, Vancouver, BC V6Z 2L5 | ||
|- | |- | ||
| | | Estate (See ''Wills Estate and Succession Act'', SBC 2009, c13, s 61(1)) || | ||
*Personal service on the administrator, executor, or executrix | *Personal service on the administrator, executor, or executrix | ||
*Registered mail to the residence of the administrator, executor, or executrix | *Registered mail to the residence of the administrator, executor, or executrix | ||
|} | |} | ||
If a defendant is served incorrectly, a claimant cannot obtain a default order until after the defendant has been properly served. | If a defendant is served incorrectly, a claimant cannot obtain a default order until after the defendant has been properly served. If the defendant has been served incorrectly but files a Reply, the claimant does not have to serve the defendant again. | ||
If | If the claim involves a motor vehicle accident, the other driver and ICBC must be served, even though ICBC may not be named as a defendant. (See ''Insurance (Vehicle) Act'', RSBC 1996, c 231, s 22). | ||
=== 1. Personal Service === | === 1. Personal Service === | ||
Personal service is effected when the claimant gives the notice of claim and blank reply form to the defendant in a manner that ensures that the nature of the document is brought to the defendant’s | Personal service is effected when the claimant gives the notice of claim and blank reply form to the defendant in a manner that ensures that the nature of the document is brought to the defendant’s attention. For example, a notice of claim inside an unmarked and sealed envelope or rolled inside of a newspaper is not properly served. | ||
If a defendant knows the nature of the document and has touched it, service has likely been effected. | If a defendant knows the nature of the document and has touched it, service has likely been effected. If the defendant knows of the nature of the document and refuses to touch it, the claimant may place it at the defendant’s feet. | ||
Personal service can be effected by any adult who is not under a legal disability. | Personal service can be effected by any adult who is not under a legal disability. A claimant may wish to have a friend or a process server serve the Notice of Claim. | ||
'''NOTE: Personal service should not be used as a means of | '''NOTE: Personal service should not be used as a means of intimidating or exacting revenge on a defendant. While it may seem satisfying to personally serve the defendant, alternative methods should be employed if there is a risk of a heated exchange. Such an exchange may lead to physical violence and, in any event, negative encounters in the course of the litigation will be counterproductive to settlement discussions.''' | ||
=== 2. Registered Mail === | === 2. Registered Mail === | ||
Registered mail is a service offered by Canada Post.In order to prove that a document was served | Registered mail is a service offered by Canada Post. In order to prove that a document was served by registered mail, a party must either obtain a copy of the signature obtained by Canada Post at the time of delivery or obtain a printout of the delivery confirmation from http://www.canadapost.ca. | ||
=== 3. Substitutional (Alternate) Service === | === 3. Substitutional (Alternate) Service === | ||
When, after a diligent search, a claimant is unable to locate the defendant or the defendant is evading | When, after a diligent search, a claimant is unable to locate the defendant or the defendant is evading service, the claimant can apply to the registrar (Rule 16(3)) for permission to serve the defendant in another manner (Rules 16(2)(e) and 18(8)). An affidavit and a hearing are not required. | ||
The alternate method of service that is ordered should be sufficient to bring the claim to the defendant’s attention. | The alternate method of service that is ordered should be sufficient to bring the claim to the defendant’s attention. Suggested methods of alternate service include a Facebook message, email, facsimile, regular mail, and text message to all known addresses and phone numbers for the defendant. Other methods include posting the Notice of Claim on the defendant’s door. The claimant should seek an order requiring service in as many methods as will be reasonably necessary to make the defendant aware of the claim. | ||
== G. Proof of Service == | == G. Proof of Service == | ||
Once the defendant has been served, the claimant should complete a Certificate of Service99 and file it along with the service copy of the Notice of Claim.If there are multiple defendants, the claimant should file a Certificate of Service and service copy of the Notice of Claim for each defendant. Other methods of written proof of service are available100. Rarely, a judge may allow sworn oral evidence of personal service101. | Once the defendant has been served, the claimant should complete a Certificate of Service99 and file it along with the service copy of the Notice of Claim.If there are multiple defendants, the claimant should file a Certificate of Service and service copy of the Notice of Claim for each defendant. Other methods of written proof of service are available100. Rarely, a judge may allow sworn oral evidence of personal service101. | ||
