Should Affidavits of Service Be Required?

Recently lawyers have been debating online about whether the rules about affidavits of service should be reformed. Particularly in the context of serving documents by email, and there is a clear record of service.

Service is important. It ensures that parties know about important court events before they happen. Sometimes self-represented litigants do not know that they must serve materials before filing. Requiring an affidavit of service before filing prevents litigants from unintentionally bringing ex parte motions.

However, we may be able to reach the same outcome without requiring affidavits of service. We can design a better system.

On Twitter @davidmichaels suggested that the court serve documents via email once they are filed.

It has also been suggested that we dispense with the requirement for commissioning affidavits. We would still require affidavits of service, but we would not require affidavits of service to be commissioned.

I agree that we should update the rules and processes around service. Service of court documents is a fundamental aspect of due process. It is closely connected to the issue of whether a court has jurisdiction over the parties and the proceedings. But the scheme around service needs to be updated.

In Ontario, we need to update the Rules for today but also have an eye towards eventually building a fully functional electronic case management system, like the Saskatchewan Court of Appeal.

(Views are my own and do not reflect the views of any organization.)



  1. This is exactly the sort of question we should be be asking about every aspect of civil procedure. Based on the best available evidence, do the benefits of the procedural requirement exceed the costs? Is there an alternative that produces more benefits with fewer costs? For another great example of this sort of thinking, see this new piece by Shannon Salter, Chair of BC’s Civil Resolution Tribunal: “Court Fee-waiver Processes in Canada: How Wrong Assumptions, Change Resistance and Data Vacuums Hurt Vulnerable Parties.” Supreme Court Law Review, Second Series, Volume 96,