SERVICE OF COMMENCEMENT DOCUMENTS – ORDER VALIDATING SERVICE NO LONGER REQUIRED WHEN THERE IS ELECTRONIC ACKNOWLEDGMENT FROM THE DEFENDANT
Recently, the Court of King’s Bench released a memorandum of the decision made by the Honourable Applications Judge B.W. Summers, Toronto Dominion Bank v Halliday, 2022 ABKB 764, (“Halliday”) which provides guidance as to when an order validating service is no longer required.
In Halliday, the plaintiff filed an affidavit with an email attachment to the defendant which stated: “attached to this email is the Statement of Claim in court action #2203 15669, The Toronto Dominion Bank v Robyn Halliday. Please confirm if you are willing to receive this document via email.”
The plaintiff’s affidavit also attached the defendant’s email response which stated: “I confirm that the document is received.”
The Clerk was directed to treat the affidavit evidence as sufficient proof of service of the Statement of Claim on the Defendant.
Applications Judge Summers considered sections of the Alberta Rules of Court in making his decision. As the defendant in the case at bar was self-represented, he considered Rule 11.18(1), which tells us that a self-represented litigant may accept in writing, service of a commencement document. Judge Summers also noted Rule 11.30(b), which tells us that service of a document in Alberta and service of documents other than commencement documents outside Alberta may be proved to have been effected by an acknowledgment or acceptance of service in writing by the person served.
Judge Summers stated that the concept of acknowledgment or acceptance of service in writing requires a document with the recipient’s handwritten signature on it is anachronistic, and that most of written communication today is by electronic means. As such electronic transmissions may constitute an acknowledgment or acceptance of service in writing.
Judge Summers also provided an outline to guide the Bar and the Clerks of Court showing when an order validating service is no longer required. The Plaintiff must submit to the Clerk of the Court an Affidavit of Service which states that the defendant was served, the method of service and the date of service. This Affidavit must refer to and attach as an exhibit a written document from the Defendant where the Defendant acknowledges or accepts service of the commencement document. A written document may be an email, a text message, a social media communication or a handwritten note. The plaintiff must also show prove that the Statement of Claim was served in the manner that the defendant agreed to.
Judge Summers did clarify that a confirmation from an electronic transmission service such as Microsoft Outlook is not sufficient in and of itself. Similarly, verbal acceptance is not sufficient as well.
When is an Order Validating Service still required? If the written acknowledgment comes from an agent on behalf of the defendant – an Order Validating Service under Rule 11.27 is still necessary. An Order Validating Service may also be required if the Clerk of the Court has doubt as to whether the evidence of service is satisfactory, in which case the Clerk may refer the matter to an Applications Judge for their discretion. Alternatively, the Clerk may exercise its own discretion to advise the submitting party that an order validating service will be required. It is also important to note that the Halliday decision does not change the compliance requirements for service as per the Convention on the Service Abroad of Judicial or Extrajudicial documents in Civil or Commercial matters.
The Halliday decision provides a welcome change which considers the prevalence of usage of electronic means of communication, and streamlines the court process by not requiring parties to obtain an order validating service when the defendant has already confirmed acceptance of service.