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Saturday, February 16, 2019

Q and A about Affidavits of Service

Recently I met with some people who have been carrying on a lawsuit on their own without a lawyer. They are doing remarkably well, considering the challenges of a complex system that has its own mysterious vocabulary and procedures. Every now and then they drop by and ask me a few questions. They raised one the other day that I'd like to discuss here.

These clients were asking about Affidavits of Service. I thought I'd put together a few important points about these documents in case anyone else is in the middle of the same process:

What are they?
An Affidavit of any kind contains sworn evidence that will be put on the court record. Service means giving court documents to someone in the right way at the right time. Putting those two concepts together, an Affidavit of Service is evidence of how and when a person was served with legal documents.

Why do one?
In the context of estate litigation, a person may need to be served with a Statement of Claim or an Originating Notice, both of which begin a lawsuit. Once that has happened, a person may need to be be served with affidavits and notices of interlocutory applications. The point is to ensure that the people on the other side of the lawsuit have fair notice of what's happening. If you're suing someone, it's up to you to make sure they get this notice properly.

What if I don't do one?
The courts are strict about making sure that notice is properly given. If you show up in court and the other party is there, you probably won't be asked to give any proof that you served them. Obviously, if they are there, they know about it. But what if they don't show up? At that point, the judge wants proof that they were given documents about the court case, and that these were delivered in the proper time frame. This is where your sworn Affidavit of Service comes into play. If you can't prove that you served the right people at the right time, the judge will most likely postpone your court case until you can give that proof.

Who do I have to serve?
You serve everyone who is a party to the lawsuit. This doesn't mean witnesses. It means anyone who is named on the paperwork. If you're the plaintiff or applicant, you serve each and every person named as a defendant or respondent. In estate litigation, you always serve the executor or administrator.

Who gets a copy of it?
The Affidavit is for the court. Once your Affidavit is ready, you take it to the courthouse and file it on your lawsuit. That gets it into the judge's hands. You also keep a copy  of it for yourself. Make a note on your copy of when you filed it (date and time). You don't have to give a copy to the person you served the documents on, or to anyone else.

Will the court charge a fee for filing it?
No. You paid your fee when you filed your Statement of Claim or Originating Notice. The Affidavit of Service is part of that lawsuit so you don't need to pay another fee.

For more detailed information and instructions about Affidavits of Service (and hundreds of other litigation-related topics, check out my book Contesting a Will Without a Lawyer: The DIY Guide for Canadians. This link goes to the publisher's page where the book is available as a hard copy with a free download for the forms, or as an e-book. You can also buy the book at Indigo and at Amazon.

2 comments:

  1. I have been in court over past 4 years .
    The first court order issued October 16 2014 was served on the other Executor November 4 2014. No service to Estate lawyer.
    I the other Executor had to finally phone which I did on November 28 2014 to get my copy.
    This was regarding passing of accounts. Neither the plaintiffs lawyer or judge saw nothing wrong.
    Now we were in contempt.
    Our lawyer did nothing about improper service.
    The contempt papers were served on lawyer only. He was furious.
    He waited 3 weeks to see if we were going to be served. I finally got a call from his secretary as the court date was the following week.
    He represented.both parties in court to change the date.
    Neither judge or their lawyer saw anything wrong.
    This carried out several times over the years.
    It got much worse.
    Later after 3 lawyers I found small town and in some cases what happens in filings in court is known throughout before we get a chance to serve people.
    The rules of civil procedure are there are there for a purpose.
    Small town Ontario Canada doesn't care

    ReplyDelete
    Replies
    1. I believe that upholding the integrity of the rules starts with the judges. If they are strict with the lawyers - i.e. if there are consequences for failure on the lawyer's part to do things properly - it won't be long before the lawyers comply. Then it's up to the lawyers to make sure their clients are doing things properly. I don't know whether small town Ontario cares, since I've never worked there. I sincerely hope it's not as bad as you say.

      Lynne

      Delete

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