Currently, it has become increasingly common to serve parties to a legal action by alternative methods of service through social media channels such as email, Facebook or other forms of social media. This specific type of Order was successfully sought in Burke v. John Doe, 2013 BCSC 964.
Rule 4-4 of the BCSC Civil Rules which relates to Alternative Methods of Service should first be reviewed:
Rule 4-4 — Alternative Methods of Service
Alternative service methods
(1) If it is impracticable to serve a document by personal service or if the person to be served by personal service
(a) cannot be found after a diligent search, or
(b) is evading service of the documents,
the court may, on application without notice, make an order for substituted service granting permission to use an alternative method of service.
[am. B. C. Reg. 119/2010, Sch. A, s. 7 (a).]
If an alternative service method is permitted
(2) If a document is to be served by an alternative method permitted under subrule (1), a copy of the entered substituted service order that granted permission to use that alternative method must be served with the document unless
(a) the court otherwise orders, or
(b) the alternative method of service permitted under subrule (1) is service by advertisement.
[am. B. C. Reg. 119/2010, Sch. A, s. 7 (b).]
Service by advertisement
(3) If, under subrule (1), the court permits a document to be served by advertisement, the advertisement must be in Form 10.
Burke v. John Doe, 2013 BCSC 964
In Burke v. John Doe, the Plaintiff seeks an Order to serve multiple unidentified Defendants by alternative method of service pursuant to Rule 4-4 as personal service on the said Defendants was not possible.
Each of the Defendants were apart of a Message Board. The Plaintiff seeks to serve the Defendants by seeking the following Order:
1. A private notification would be sent to their message board account advising them that they are named as a defendant in Mr. Burke’s defamation action;
2. Providing notification on how to access the notice of civil claim; and
3. A copy of the substituted service Order also be posted, at a dedicated page of the Plaintiff’s counsel website
As Rule 4-3 requires personal service on a party, unless the Court so Orders, the Plaintiff argued that it was “impracticable” to personally serve the stated Defendants.
The definition of “impracticable” was also discussed by the Court:
“The meaning of “impracticable”, in the context of applications for substituted service, has been the subject of some discussion in cases decided under the former Supreme Court Civil Rules. For example, in Credit Foncier Franco-Canadian v. McGuire (1979), 14 B.C.L.R. 282 (S.C.), the court reviewed dictionary definitions of impracticability and concluded that, while each case depended on its own circumstances, impracticability meant “incapable of being done usefully or capable of being done but at too great a cost”. The interpretation of impracticability in Credit Foncier, and other like cases, was applied by Burnyeat J. in Luu v. Wang, 2011 BCSC 1240 (CanLII), a case decided under the current Rules.”
I will outline some of the points raised by the Court in its analysis:
- Personal Service will ensure a Plaintiff has been informed of a legal action; it provides certainty;
- It is not necessary, however, for a Court to be “certain” that notice will be received;
- You must show that personal service would be “impracticable”;
- The test is that the alternative method is “reasonably likely” to bring notice to the party
Posting to a “Message Board” has never been decided before prior to this action, although service via email or facebook has been. But the “test” is to show that the said party has an “active email or profile on social media sites” in order to succeed in seeking such an Order.
- Knott Estate v. Sutherland,  A.J. No. 1539 (Alta. Q.B.) Master Breitkreuz ordered service of a statement of claim and notice to a defendant by sending a notice of the action to the defendant’s Facebook page.
- Bryne v. Howard,  FMCAFAM 509 (Fed. Mag. Ct.), service of a child support application via Facebook, and other electronic means, was deemed effective;
- Mothership Music Pty Ltd. v. Darren Ayre (T/As Vip Entertainment & Concepts Pty Ltd),  NSWDC 42, service of an injunction application was permitted by email transmission and by Facebook.
- Blaney v. Persons Unknown, (1 October 2009) IHQ/12/0653 (Ch.), a journalist and commentator who operated the “Blaney’s Blarney” website, obtained an injunction against an anonymous internet poster who was impersonating him through a Twitter account. Counsel was unable to provide me with a copy of the case despite efforts to obtain it from various sources. However, according to reports of it published in the Canadian Lawyer’s Weekly (Leonard Polsky and Stacey Wade, “Status update: service by Facebook” September 30, 2011) and in “Online defamation: confronting anonymity” a paper written by Anna Vamialis and published by the Oxford University Press, the High Court granted the plaintiff leave to serve the defendant poster with an injunction by sending a message to his Twitter account which included a link to a website on which the injunction order was displayed.
- It is confirmed the Defendants are not known to the Plaintiff;
- The Defendants have not been located;
- There is no “cost-effective” means to locate and identify the said Defendants;
- Norwich Orders would not be effective in this case;
- There is a likelihood that notice would be provided to the said Defendants through the Message Board, as opposed to email
- By not allowing such an Order for alternative service, it would make this action lengthy and time consuming (Note: these factors alone are not enough to seek such an Order)
- it is reasonably likely, or probable, that notice of the proceedings will come to the attention of the Message Board Defendants by the proposed method.
“In all these circumstances, I order that Mr. Burke may serve the notice of civil claim, filed April 26, 2012, on the Message Board Defendants by sending them a private message to the internet message board accounts maintained by them in the form attached to the notice of application. I required the form of the message to be amended to include the name and contact information of the lawyer at Heenan Blaikie from whom the Message Board Defendants may obtain the notice of civil claim and a copy of this Order. In addition, I ordered that a similar notice be published in one edition of a national Canadian newspaper.”
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