Service by social media has been an emerging force in litigation in recent years. With an ever-increasing number of people with profiles on Facebook, Twitter and LinkedIn, it just makes sense. As demonstrated by two recent Orders granted to Bogoroch & Associates LLP, the Superior Court of Ontario is getting much more comfortable with this idea as well.
The requirement for service
The requirement for service is about making sure that a legal process, especially an originating one, comes to the attention of the person whose rights it is affecting. However, in most personal injury contexts, the person who is being named in the lawsuit is not the same as the person or entity that will defend against it. Practically, it is the insurer and their counsel that need to be involved to move the lawsuit along.
Usually, it is relatively easy to serve an originating process on the named Defendant, which they in turn send to their insurer. Once in a while, however, despite knowing the identity of an individual, tracking them down for service in person can sometimes be impossible or impractical. Enter service by social media.
Social media service in practice
Take the following scenario: you have investigated a Defendant’s whereabouts thoroughly and still cannot find a current address for them. You tried serving them at the address listed through the Ministry of Transportation, but that house is gutted and there is no forwarding information. You don’t know where the person works, or even what they do. All you have access to is their insurance information…and their Facebook page.
In a motion on these facts heard on July 15, 2016, Master Muir granted an Order for substituted service on a Defendant’s auto insurer, by lettermail to their last known address (despite it being gutted), and by Facebook. As representatives of the Plaintiff, Bogoroch & Associates LLP wanted to move to the next steps of litigation expeditiously. Mailing the Statement of Claim to the last known address was not, in this case, going to convince the Court that the Claim would come to the Defendant’s attention. We were able to demonstrate that this Defendant had an active Facebook profile and that it would likely come to her attention that way. Meanwhile, her insurer could be served with the Claim, meaning that even if the Defendant didn’t see the Claim, we would be in a position to move the litigation forward.
In a second scenario, we had to serve a doctor who had only worked at a hospital in Canada on a temporary basis. His co-Defendants and the lawyers of record were easy to find, but the Defendant doctor had since returned to his native South American Country, leaving behind no contact information. However, it was clear that he maintained an active LinkedIn profile and the master ultimately ordered that the Defendant doctor be substitutionally served by LinkedIn private message. As each social media platform has its unique set of privacy and user communication settings, it was an entirely different, and more challenging, process than service through Facebook. It is unlikely that we would ask for substituted service via LinkedIn in the future, but it is helpful to have access to this alternative channel.
The Courts are recognizing social media as a legitimate and necessary tool for communication. This can be especially useful in personal injury law, where the number of Defendants can be high and their physical whereabouts unclear. Despite the challenges it can pose, there are many ways to use social media to our advantage while also being savvy about the risks and practicalities of using it for substituted service.