Wes McMillan: Substituted service and the "diligent search" per Rule 4-4(1)

When it comes to availability of substituted service, have the changes embodied in the Supreme Court Civil Rules changed anything? In Luu v. Wang, 2011 BCSC 1240, Burnyeat J. provided the first judicial comment on changes respecting substituted service.   

First, here is a before and after look at the rules relevant to allowing substituted service:

Rule 12(1) (Former Rule) 

  1. Where for any reason it is impracticable to serve a document as set out in Rule 11, the court may order substituted service, whether or not there is evidence that the document will probably reach the person to be served or will probably come to the person's attention or that the person is evading service. 

 
Rule 4-4(1) 

  1.  If it is impracticable to serve a document by personal service or if the person to be served by personal service 
    1. cannot be found after a diligent search, or 
    2. 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. 
 

Since the first edition of the British Columbia Annotated Practice, the annotations for Rule 12 have referenced the BC Supreme Court decision in Credit Foncier Franco-Canadien v. McGuire (1979), 14 B.C.L.R. 281, wherein van der Hoop L.J.S.C. explained what was needed to obtain an order for substituted service: 

[7] Before a judge can grant an order for substituted service, then, he must be supplied with facts establishing that personal service cannot be usefully effected or will involve too great a cost. The applicant must show that reasonable steps have been taken to locate the party to be served and, if he has been located, that reasonable efforts had been made to effect personal service. What is reasonable must depend on the circumstances of each case including, for example, the type of relief claimed, the amount involved, the avenues explored to locate the person and the steps taken to effect personal service.”

He lamented that many applications were “woefully deficient in supporting material setting out the facts” necessary to support the order sought.

Sit through chambers long enough and you will find that this concern holds true more than 30 years later.

So what is different today?

The former Rule 12(1) provided that an order for substituted service may be granted where it is impracticable to serve a document personally (whether or not evidence shows the intended recipient is evading service). There is ample case law respecting when service will be deemed impracticable and what behaviour, or lack thereof, constitutes evading service. Notably, the former Rule 12(1) said nothing on the matter of diligent search.

Burnyeat J. compared the language of the new Rule 4-4 with the old Rule 12(1). He found that in addition to the bases for an order for substituted service under Rule 12(1), Rule 4-4 permits the court to make such an order if the person cannot be found after a diligent search.

Unfortunately for the plaintiff in Luu v. Wang, Burnyeat J. held that none of the grounds for an order for substituted service existed. The Master’s order for substituted service was set aside because:

  1. the evidence was inadequate to show that it was practically impossible to serve the Defendant; 
  2. the evidence was missing as to the actual cost of serving the Defendant in China, so that it could not be said that service could not be done without laying out more money “then the thing was worth”; 
  3. it could not be shown that personal service could not be easily effected—in fact, the evidence was that personal service was effected in China on the defendant named in another action; 
  4. the Plaintiff knew where the Defendant was in China, and made no attempt to serve him there. 

Burnyeat J. provides a useful and succinct summary of the law with respect to when service is impracticable.

Burnyeat J. noted that the case law, including Foncier Franco-Canadien v. McGuire, provided that an applicant must show that reasonable steps had been taken to locate the party to be served and, if located, reasonable efforts had been made to serve that person. That which will constitute reasonable steps will depend on the circumstances of each case, including the type of relief sought and the amount involved. 

These considerations are not new, however Burnyeat J. indicated that the Court will consider if effecting personal service is more expensive “than the thing is worth”. In these facts, the claim was in the neighbourhood of $1 million, and the failure to disclose this to the Master was critical. While these factors are derived from the case law under the old rules, they seem to reflect the shift to proportionality embodied in the Supreme Court Civil Rules. It may now be more important than ever before to present sufficient evidence of the value of the claim before a Master, especially where the value is significant.

But what of other differences? 

Despite the appearance of the words “diligent search”, it is questionable whether Rule 4-4 really creates a new basis upon which an order may be made (i.e. proof of a diligent search) or simply re-states the existing law. Credit Foncier Franco-Canadien v. McGuire already said that reasonable steps to locate the party were needed to obtain an order for substituted service.

It would be prudent for an application for substituted service to include:

  1. evidence of a diligent search; and 
  2. evidence of the cost to make further efforts to locate and serve the party.   

Undoubtedly the courts will demand more out of counsel than in the past in evidencing a fruitless diligent search. The Internet and, more particularly, social networking sites provide a trove of information that can assist in effecting personal service. The cost and time involved in conducting an Internet search will invariably be less than attending at court on a substituted service application. If the Internet search is fruitless, an affidavit setting out the details of the search and the websites viewed will be of assistance in persuading the court that the party cannot be found after a diligent search. 

In my practice I had to have a judgment debtor served personally with a subpoena to debtor. This debtor had evaded service in the past. While his address was known, he resided in a building in which guests could only gain access to the floor of the resident who buzzed them in. Rather than pay a process server to sit outside the building and hopefully get buzzed in to the right floor (and then hope the debtor was home and would answer his door), I conducted a Google search of the debtor’s name and his business. In less than 30 minutes I had his softball team’s schedule. Shortly thereafter he was served. I believe he was playing 3rd base at the time of service.