Understanding Substituted Service Under SCCR Rule 4-4(1): What You Need to Prove

November 27, 2024 | By Divyanshu

In legal proceedings, personal service is the standard way of notifying someone about a legal action. However, what happens when personal service becomes impossible or impractical? This is where substituted service comes into play. Under SCCR Rule 4-4(1), parties can seek alternative methods of service when personal service is either impracticable or when the individual being served is intentionally evading service. But how do you prove that these conditions are met?

In this blog post, we’ll break down what you need to show to successfully obtain a court order for substituted service, and explore the legal principles and case law that guide this process.

What Is Substituted Service?

Substituted service is a legal alternative to personal service, where the court allows a different method of serving legal documents. According to SCCR Rule 4-4(1), substituted service may be granted when:

1. Personal service is impracticable, or
2. The person to be served is evading service.

This rule allows for flexibility, but the court needs sufficient evidence to justify this alternative. Let’s take a deeper look at both scenarios.

1. Proving Impracticability of Personal Service

Under SCCR Rule 4-4(1)(a), if personal service is impracticable due to the party being hard to find or difficult to locate after diligent efforts, substituted service may be ordered. To convince the court that personal service is impracticable, you must provide clear evidence that:

Steps to Prove Impracticability:

• Process Server Attempts: Show that the process server made reasonable and documented efforts to locate and serve the individual. This should include when and where the attempts were made.
• Multiple Attempts: Document at least two or more distinct, non-cursory attempts to serve the individual. Simply knocking on the door once won’t suffice; the attempts must be meaningful and persistent.
• Title Search: If the individual resides at a particular address or owns property, conduct a title search to gather information that can support your efforts to locate them.
• Likelihood of Success: Demonstrate that alternative methods, such as service by email or posting to the individual’s residence, are likely to succeed.
• Excessive Costs: If personal service is excessively costly, this should be clearly shown. For example, serving a foreign defendant may incur significant costs that justify requesting substituted service.

Precedents for Impracticability:

• Chana v. Niwa (2023 BCSC 200): The court allowed substituted service via the defendant’s Facebook wall after multiple attempts to serve documents at their last known address.
• De Carvalho v. Zhang (2021 BCSC 2117): In this case, service by traditional means was impractical due to the defendant’s outdated address in China. The court allowed service through WeChat, a commonly used social media platform.
• R. v. P.R.T.W. (2021 BCPC 374): After several attempts by the process server, the court permitted service via priority post and email instead of personal service.
• Zhange Estate v. Yin (2024 BCSC 1164): The court allowed substituted service via email, citing the defendant’s extended absence from the region and their prior involvement in the action.

2. Proving Evasion of Service

Another ground for substituted service is when the party to be served is intentionally avoiding service, as per SCCR Rule 4-4(1)(b). To demonstrate this, you must show that the person being served is aware they are being served but is intentionally evading it.

Steps to Prove Evasion:

• Awareness & Avoidance: Evidence must show that the person being served was aware of the service attempts and purposefully avoided them. For example, if they failed to answer the door when the process server arrived, or they intentionally missed service at times they would likely be home.
• Circumstantial Evidence: Evasion can often be inferred through actions like walking away when seeing someone they don’t recognize outside their home. A direct admission of evasion is not necessary; circumstantial evidence is sufficient.
• Patterns of Evasion: If there is a consistent pattern of evasion, such as repeatedly being absent at reasonable times when the process server arrives, this will help support the claim of evasion.

Precedents for Evasion:

• Re Application 20240726 (2024 CarswellBC 3194): The court confirmed that evasion does not require direct admission. Circumstantial evidence, like walking away when the process server is in the area, can be enough to prove evasion.
• McKinley v. Law Society of British Columbia (2018 CarswellBC 4089): A lawyer’s refusal to cooperate with service was deemed as evasion. The court held that her actions amounted to deliberately avoiding service.

Key Takeaways: Evidence is Key

Whether you are proving impracticability or evasion of service, it is essential to provide documented evidence of your efforts. This might include:

• Detailed affidavits from process servers describing when and where attempts were made.
• Documentation of a title search to demonstrate efforts to locate the person.
• Clear evidence showing that alternative service methods (like email or social media) are likely to succeed.
• Proof that service costs are excessive, especially for foreign parties.

Without sufficient evidence, the court may not grant a substituted service order.

Conclusion

Substituted service offers a valuable solution when personal service is impossible or impractical. However, to secure an order for substituted service under SCCR Rule 4-4(1), you must be able to demonstrate either the impracticability of personal service or the evasion of service. With the right evidence—ranging from process server attempts to patterns of evasion—you can present a strong case for why substituted service is necessary.

Need Assistance with Substituted Service?

If you need help navigating the process of substituted service or have other legal questions, our team is here to assist you on your case. Reach out today for professional legal advice tailored to your situation.

📞 Contact us today at 604.581.7001 to schedule a consultation.

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Disclaimer: This blog post is intended for informational purposes only and does not constitute legal advice. While we strive to provide accurate and up-to-date information, every legal situation is unique. For personalized legal advice tailored to your specific case, please consult with a qualified lawyer. We are happy to assist you with your legal needs, but this post should not be relied upon as a substitute for professional legal counsel.