The 6 Month Rule and Personal Service

HI Everyone, it's Kristy from Clearly Legal.

We all know a major overhaul in the rules is coming. For now, let's chat about about the 6 month rule for serving a Statement of Claim. If you miss this deadline or don’t serve the documents properly, your case could face delays or even dismissal.

Understanding the 6 Month Rule

The 6 month rule comes from Rule 14.08(1) of the court procedures. It says you have 6 months from the date the court issues your court file number to personally serve the defendant with your Statement of Claim. If you started your case with a Notice of Action instead, you must serve both the Notice of Action and the Statement of Claim together within 6 months from when the Notice of Action was issued.

This deadline is strict. If you do not serve within 6 months, the court may dismiss your claim unless you get an extension (a motion to extend time for service).

In the coming months, we could be looking at as little as 45 days, with an extension to 90 days, but, for now, the Plaintiff has 6 months.

What Is Personal Service?

Personal service means giving the Statement of Claim directly to the defendant or their authorized representative. While you can affect service in alternative manners, you are required to attempt personal service first (unless, and only unless, there is already defense counsel involved and that counsel has declared in writing that he or she is willing to accept service on behalf of the defendant client).

Different Rules for Different Defendants (sort of - check out Rule 16.02 (1) for complete details.

Personal service varies depending on who the defendant is, and Rule 16.02(1) has broken this distinction into the following categories:

• Individual

• Municipality

• Corporation

• Board or Commission

• Person outside of Ontario Carrying on Business in Ontario

• Crown in Right of Canada

• Crown in Right of Ontario

• Attorney General

• Absentee

• Minor

• Mentally Incapable Person (I'm sorry - that is literally what the Rules call this classification).

• Partnership

• Sole Proprietorship

  
  

The big take away is the requirement to hand the document to someone who is able to accept service, or try to.

If you cannot serve personally within 6 months, you can ask the court for an extension or alternative service methods, but this requires good reasons (to the point that, while not common, if the judge feels you sat on it for no reason, you will be asked about that).

I have been working with the 6 month rule since 2003, and I am getting ready to navigate this new idea of 45 or 90 days. Lawyers, if you need help with service, you need me. Contact me at kristy@clearlylegal.ca  and we'll chat.