You’ve Been Served: Social Media Edition

CNN reported today that a woman somewhere in New York may serve her husband divorce papers via Facebook. A link to that story may be found here. In Canada, service via social networking sites is not a new concept and has been ordered on a number of occasions. For example, most recently in Eastview Properties Inc. v Wayne Mohamed, 2014 CanLII 52397 (ON SCSM), Ontario Small Claims Court Deputy Judge Laura E. Joe allowed the plaintiff to serve a notice of claim to Wayne Mohamed via “Facebook Private Message.”

In British Columbia, the court has gone further. In Burke v. John Doe, 2013 BCSC 964, Master MacNaughton ordered that certain unknown defendants could be served with Mr. Burke’s defamation suit via private notification to a message board account advising them that they are named as defendants and explaining how to access the notice of civil claim.

With respect to these types of orders, Master MacNaughton reviewed the following unreported decisions, beginning at paragraph 12:

[12] Personal service provides certainty that a party has notice of a proceeding. However, it has long been understood that is not necessary for the court to be certain that a method of substituted service ensure that notice will be received. It is sufficient if the alternate method is reasonably likely to bring the process to the attention of the person served.

[13] The particular method of service proposed by Mr. Burke has not been the subject of any decisions of this court, although substituted service through active email accounts and other social media sites such as Facebook has been permitted both in this court, elsewhere in Canada, and in other Commonwealth countries.

[14] Many such applications are not reported. They are granted on affidavit evidence which confirms that the person proposed to be served maintains an active email or profile on social media sites. They reflect the reality of today’s methods of communication which are increasingly electronic.

[15] In Knott Estate v. Sutherland, [2009] 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. Similarly, in Bryne v. Howard, [2010] FMCAFAM 509 (Fed. Mag. Ct.), service of a child support application via Facebook, and other electronic means, was deemed effective and in Mothership Music Pty Ltd. v. Darren Ayre (T/As Vip Entertainment & Concepts Pty Ltd), [2012] NSWDC 42, service of an injunction application was permitted by email transmission and by Facebook.

[16]In a case involving facts similar to this, Blaney v. Persons Unknown, (1 October 2009) IHQ/12/0653 (Ch.), a journalist and commentator who operated the “Blane 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.

A family law example in BC is that of SJF v. RMN, 2013 BCSC 1812, in which a distraught father unsure where his ex-wife had taken their children obtained an order allowing him to server her with his notice of family claim by leaving a copy of the claim at her last known address and notifying her via Facebook that she had been served.

The overall concern of the court is to ensure that those who are facing legal action are properly notified of the action they are facing and have the opportunity to address the plaintiff’s or claimant’s claims. Some defendants have been known to be creative in finding ways to avoid being found and/or refusing to aid in arranging their own service. To counteract that, the courts need to allow counsel to be just as creative in using any/all ways to notify defendants of the claims against them. Otherwise the system as we know it comes to a halt.

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Richter Trial Law