Electronic Service X 2

1. Following the example of the UN Model Law on Electronic Commerce, the UN E-Communications Convention [PDF] contains a provision on when electronic messages are received. They are received when they are capable of being retrieved by the addressee at an electronic address designated by the addressee. (Article 10) An electronic message is presumed to be capable of being retrieved by the addressee when it reaches the addressee’s electronic address.

The explanatory note to the Convention explains at para 180 that this presumption of retrievability may be rebutted, for example, if the security filters of the addressee’s system prevent the message from being retrievable.

This is consistent with the UECA s. 23 and the provincial implementing laws, almost all of which have a presumption of receipt, rather than a rule.

Professor Goldman says that ‘my filter prevented receipt of your message’ is becoming the lawyer’s version of ‘the dog ate my homework’. But sometimes it works, anyway. Here is his note on a recent case where a party was allowed to file an appeal a month after the deadline for doing so had passed, on the ground that the party’s spam filter had prevented it from having notice of the date of the original order.

Note the discussion of the several other cases where the excuse had not been accepted — mainly those in which counsel did not otherwise appear very competent either. So it’s at least a fact-based excuse, and the fact has to be proved.

What would a court do in Canada? We don’t do much e-filing yet — except in BC, I think. The Ontario e-filing rules of a decade ago depended on proprietary and dedicated software provided by the Ministry, so spam filters were not, I think, a problem. The late, quasi-lamented Integrated Justice Project intended to use Internet-based e-filing, but that system never really got into use, so its response to filtering — or the courts’ response to filtering as an excuse — never got tested.

Under the Ontario Rules, e-service of documents among counsel in actions requires consent of all participants, and an acknowledgement of receipt before the message can be considered received. So filters are not an issue there either.

2. An Ontario judge recently allowed service by Facebook in a family case. From the write-up in The Law Times, it appears as if service was made first and approved by the court afterwards. The judge gave a paper at a conference in favour of this kind of flexibility.

Would such a service be done on someone’s wall, or by private message? Should one have to demonstrate that the owner of the FB site was using it regularly, i.e. there was someone home? In the instant case, the person served responded, which helped persuade the judge that the service method was good…

Service by FB has been done in Australia, and I believe in an unreported case in Alberta earlier this year. Should it become common, at least as a substitute method of service? If not, why not?

If one did purport to serve someone by posting the legal notice on the target’s wall, would the target have any legally recognizable complaint about violation of privacy? Defamation?