Substitute service is a court-approved method of serving a claim, motion, application, notice, or other document when ordinary service cannot be completed promptly or practically. The court may allow service by a different method, and in some cases may dispense with service where that is necessary in the interest of justice. Under the Superior Court rules, the court must specify when service under the substituted service order becomes effective.

In practical terms, substitute service is often sought where the person to be served is evading service, refusing to answer the door, has no reliable fixed address, is difficult to locate, or where multiple reasonable attempts at service have failed. 

A substitute service motion is commonly used in matters involving debt collection, contract disputes, landlord and tenant-related civil claims, fraud claims, business disputes, and enforcement proceedings. It may be appropriate where:

• the defendant is avoiding the process server;

• the person has moved without leaving a reliable forwarding address;

• personal service attempts at home or work have failed;

• mail service is unreliable or has gone unanswered;

• the defendant is active online but difficult to reach physically;

• a family member, friend, employer, or known contact can reliably bring the documents to the person’s attention; or

• there is evidence the defendant knows about the case but is deliberately evading formal service.

Under Rule 16.04(1) of the Rules of Civil Procedure, the court may order substituted service where it appears impractical for any reason to effect prompt service of an originating process or another document that must be served personally or by an alternative to personal service. The same rule also allows the court, where necessary in the interest of justice, to dispense with service.

Substitute service is not meant to spare a plaintiff mere inconvenience or expense. The moving party must usually show genuine impracticality and reasonable prior efforts to serve. The affidavit material should describe the attempts already made, explain why ordinary service has not worked, identify any evidence of evasion if applicable, and propose a method of service likely to come to the defendant’s attention. The order should clearly specify the approved method of service and the date on which service will be effective.

In Small Claims Court, service rules differ somewhat from the Superior Court, but the court still has the power to authorize substituted service. Ontario’s Small Claims Court guide states that if personal service or an available alternative method cannot be completed, a party may bring a motion under Rule 8.04 to obtain an order for substituted service, and the method ordered by the court becomes the authorized means of service.

Small Claims matters often move quickly, so delay in service can create real procedural problems. A prompt motion for substitute service can help prevent missed deadlines, stalled claims, and adjournments. We help clients build a motion record that gives the court a practical roadmap for how service should be completed and why the proposed method is fair and effective.

The right method depends on the facts. Courts are generally looking for a method that is reasonably likely to bring the documents to the person’s attention. Depending on the case, substitute service may include:

• email to a known active email address;

• text message or messaging app with attached documents or a link to them;

• service on a lawyer who is in contact with the person;

• leaving the documents with a close family member or another responsible adult;

• courier or mail to a confirmed address combined with another method;

• posting the documents at a last known residence or business; or

• service through another tailored method supported by evidence.

Publication may sometimes be requested, but Ontario practice commentary notes that it is often expensive and should not be the first choice where a more direct and realistic method is available.

A strong motion for substitute service usually turns on evidence. Courts commonly expect to see:

• an affidavit describing who is to be served and why service matters;

• dates, times, and locations of all prior service attempts;

• process server evidence, where available;

• details of any investigation, skip tracing, or address searches completed;

• evidence showing the proposed substitute method is connected to the person; and

• a draft order setting out precisely how service should occur and when it is effective.

The stronger the evidence that the proposed method is likely to reach the defendant, the stronger the motion usually becomes.

In some circumstances, the court may go further and dispense with service altogether. In Superior Court, Rule 16.04 expressly allows the court to do so where necessary in the interest of justice. This is a more exceptional remedy and is not available simply because service is difficult. It is generally reserved for cases where a substitute method is still unlikely to be effective, or where the surrounding facts make a dispensing order justified.

A substitute service motion may look simple, but courts often reject weak or incomplete materials. A motion can fail where the evidence does not sufficiently explain the attempts at service, where the proposed method is speculative, or where the order requested is too vague. Ontario commentary also notes that mere difficulty in serving the defendant is not enough by itself; the evidence must show real impracticality and reasonable efforts.

We help clients by:

• reviewing the service history and identifying deficiencies;

• coordinating with process servers and investigators;

• drafting the affidavit and notice of motion;

• preparing a clear, practical draft order;

• appearing on the motion in Superior Court or Small Claims Court; and

• advising on next steps once the order is obtained.