Mullay v Shaba, 2023 ONSC 2022
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By: Chloe Jardine (Articled Clerk)
This Motion stems from a motor vehicle accident which occurred on July 19, 2020. The Plaintiff was previously unsuccessful attempting to serve the Defendant with the Statements of Claim at the address listed on the accident report and sought an order for substituted service to serve the claim via service on the Defendant’s automobile insurer.
Prior to the Motion, the Plaintiff requested the assistance of the Defendant’s insurer when the Plaintiff’s initial attempt at service was unsuccessful. The Defendant’s insurer was unsuccessful in their attempt to reach the Defendant by phone, but there is no evidence to suggest the Defendant’s insurer took any further steps to locate the address of the Defendant or agreed to accept service on the Defendant’s behalf. This was the extent of the Plaintiff’s effort to locate the Defendant.
The Plaintiff’s Motion was dismissed on the basis that (1) the Plaintiff did not undertake reasonable steps to locate the Defendant for the purposes of service, and (2) a defendant’s insurer is not the insured’s agent for service (a party which is entitled to accept service on behalf of another party). The court found that the longstanding practice of lawyers serving the defendant’s insurer is “incorrect”, and this decision may signal the end of this commonly utilized method of substituted service when a defendant cannot be located at the address listed on an accident report.
Justice Trible stated there is no statutory basis to serve a defendant’s insurer in place of a defendant, as the defendant’s insurer is not the “alter ego” of a defendant. Simply, the onus of locating a defendant should not be placed on the defendant’s insurer in these claims. It is the responsibility of the plaintiff to prove the extent of their efforts to locate the defendant (conducting social media/Canada 411 searches, hiring a skip tracer, etc.) before being granted an order for substituted service.
Justice Trible stated that a Court should only order substituted service via a defendant’s insurer when (1) the insurer agrees to accept service on behalf of the insured, (2) there is evidence to suggest the insurer has a current address for the defendant and the insured is likely to become aware of the claim if service is affected on the defendant’s insurer, or (3) the plaintiff undertakes not to strike out the defence if the insurer cannot produce its insured for Examination for Discovery.
If a defendant is to be served via service on their insurer, an applicable method of service (i.e. delivery to last known address, publication in two editions of local or national newspaper) must be attempted for the insured defendant regardless.
Given that serving a defendant’s insurer when a defendant cannot be located at the address listed on an accident report is common practice, this decision will impact how plaintiff counsel approach locating defendants moving forward. An increased effort to locate a defendant is likely to lead to increased costs for plaintiffs in these types of claims.
