Service of court documents on a party evading service has always been challenging. Canadian Lawyer Magazine reported a recent case in Ontario where a judge granted effective service by Instagram,
When Toronto lawyer Tara Vasdani could not track down a defendant she was looking to serve, she turned to Instagram…
She first attempted to serve the defendant on Sept. 1, 2017, using a physical address, and her process servers were told the defendant had moved away. She then tried using email, with a read receipt, but her messages were either ignored or never read.
The order Vasdani obtained appears to grant effective service through mailing to the defendant’s last known address, as well as through Instagram and LinkedIn. The defendant apparently could not be found on other social media sites such as Facebook, for which service has been observed in Ontario before.
The Rules of Civil Procedure allow for considerable flexibility where it can be demonstrated that it appears as if service is being evaded, and counsel has attempted to effect service through traditional means, usually after multiple attempts. The inability to serve a party properly in these circumstances often introduces unnecessary delays and additional costs for the moving or initiating party.
Rule 16.03(4) allows for service of documents to a last known address through the mail, and 16.04 allows for substitute service or dispensing with service altogether,
16.04 (1) Where it appears to the court that it is impractical for any reason to effect prompt service of an originating process or any other document required to be served personally or by an alternative to personal service under these rules, the court may make an order for substituted service or, where necessary in the interest of justice, may dispense with service.
Of course a party can always claim later under 16.07 that they did not receive the documents, or did not receive it in time. One technique that we have used in other social media service cases is to validate service under Rule 16.08, which requires the court to be satisfied that it has come to their notice, or would have except for their efforts to evade service. Typically this can be done by demonstrating that a message has been read, or that the account has been used, for example by posting photos after the message with the service documents were sent.
On Instagram it’s possible to tap the green send bar and see if there is a green check mark on it. This symbol signifies that the recipient, or at least a user of the account, has seen the message. There are ways to read messages on Instagram without signalling the read receipt, as demonstrated in this video.
Instagram has also released a number of new changes these past few weeks, which might be relevant to demonstrating likelihood of receipt. A new “type mode” provides contemporary thoughts in text, rather than photo, and might contain details that a #latergram does not. Even more useful would be the feature introduced last month, demonstrating when a user was last active, though this can also be disabled in settings.
Although service by Instagram is unlikely to become a common means for providing documents to parties, it may well be increasingly used in conjunction with other methods to demonstrate that all reasonable efforts have been made to effect service. Some familiarity with the social media platforms involved may assist in preparing for service motions of this type.