Court documents: Service in the modern world


Just as the American musician Bob Dylan pointed out in the song Gotta Serve Somebody, Canadian courts generally require that documents in legal proceedings be served on parties affected by the potential results of those proceedings. It has been said that a central tenet of our legal system is that no decision should be made without all parties being heard. In these times of anonymous communication and business relations over the internet, service can seem impossible. This has required counsel — and the courts — to become more imaginative in finding means to effect service.

In the “old days” of just a few years ago, service of court documents was made by hiring a process server who would physically serve a party. Where such a party had made themselves scarce, it was possible to obtain a court order for “substitutional service”, whereby the party might be served by mail to a last known address, through newspaper advertisements, and the like. Now, when the identity and/or location of a party may be unknown, such means of service simply don’t work.

In a recent case from Ontario in which it was alleged by the plaintiff that the defendants engaged in a fraudulent scheme involving non-fungible tokens (NFTs), the court was faced with such a problem. The plaintiff sought to serve court documents, including an injunction order, via email, Facebook, Instagram, and Twitter. Acknowledging that those modes of service were already allowed by Canadian courts with increasing frequency, the court agreed to allow the plaintiff to use those modes to serve its documents.

In addition, the plaintiff sought to serve the defendants by creating unique NFT images of each page of the injunction order and "AirDropping" them into the defendants’ crypto wallets, together with a hyperlink to the full court documents. This too was allowed.

The message here is that as parties become evermore adept at hiding and evading service, the courts are becoming equally accepting of alternative means of serving those defendants with court documents.