Thursday, January 23, 2014

Precedent for Serving Court Documents via Facebook

Service of Documents by Facebook?

Gregory, J. (2014). 

An article in this week’s Law Times notes another court decision, this time in Ontario, approving substitute service by Facebook. In other words, counsel showed the court that there was no other reasonable way of getting the documents to the party to be served, and that sending to FB was likely to reach the party.

The author says that this should be the norm.
The requirement for hand-delivered document service, while historically sensible, is somewhat archaic in this electronic age. Successful service should be all about making sure that the person is aware of the document. For those of us who are more present online than offline, receiving vital information electronically is commonplace.
Does this make sense to you? How does one make sure that a person served via Facebook (or another social medium, such as Twitter, etc) is aware of the document? Suppose the person denies having received it, later. Is independent evidence of delivery available?
For that matter, many people on Facebook do not have pictures on their pages. How does one know one has the right John Smith, especially if such service becomes ‘the norm rather than an exception’?

Background & Legal case

Personal Injury Law: Service via Facebook should become the norm

Merkur, D. (2014). Law Times.

Ontario Superior Court of Justice that substituted service of a statement of claim on a defendant via Facebook was appropriate (see the unreported decision of Juzytsch v. Terlecki from the court in Barrie, Ont.). Other provincial courts have similarly allowed service via Facebook or similar Internet message board services, including in Alberta and British Columbia.

To succeed in any such motion, counsel must establish that the person’s whereabouts for personal service are unknown despite diligent investigation; the Facebook profile belongs to the person in question; and the person is an active user of Facebook such that the claim will likely come to the person’s attention.

While the case law has focused on service through Facebook, the courts could also consider substituted service through other popular social networking web sites like LinkedIn, Twitter, and Instagram.

Father ordered to pay $35,000 in ‘special costs’ due to poor conduct

After repeated warnings to reel in the insults, father ordered to pay $35,000 in ‘special costs’
By Ian Mulgrew, Vancouver Sun January 19, 2014.

A father who represented himself in a custody dispute has been hammered with a $35,000 “special costs” fine for abusive behaviour during the legal battle.

In a scathing judgment against the virulence and rancour at the heart of a growing number of high-conflict family law cases, B.C. Supreme Court Justice Jeanne Watchuk lambasted the man known only by his initials — A.S.P.

She minced no words in her strident defence of civility as a necessary element of the Canadian judicial system.

The justice cited emails from the man such as — “What does a man have to do to get divorced from a wench?”

“The conduct of the father has consistently been rude, inflammatory, derisive, threatening, and disrespectful and insulting of the mother, her counsel and the court process,” said Watchuk in the stinging rebuke.

“It has not been situational or short-lived. It has been consistent over more than two years. It has included behaviour in the courtroom, and email communications to scheduling as well as communication with counsel for the mother continuing after the written submissions on costs were filed …. there is no justification for this behaviour in a court proceeding.”

This case involves a couple who married in 2007 and separated a short time later in 2009 before the birth of twins.

They have been arguing over the children since, though a divorce was granted Jan. 25, 2012.

The kids live with their mother, known in court documents as N.N.J., and her parents in Surrey; the father has a home in Surrey but is a U.K. citizen and travels frequently for business.

The legal fight lasted longer than the marriage.

The acrimonious proceedings consumed 26 days of court time: a 19-day trial, four applications heard in chambers, and two attempts by the father to reopen the trial, one requiring a five-day hearing and the second, two days.

The justice said A.S.P. has continued to threaten to report the proceedings to the media with a view to “intimidating the (mother) as well as her counsel …. has threatened to bring legal proceedings against counsel for the (mother in the United Kingdom … and) threatened to report the (mother) to foreign authorities while she is travelling with the children.”

After the recent decision, he sent me a note offering the “real story” on Watchuk. “Be patient, then,” he replied. “It was either you or The Guardian (I know the editor).”
I am still waiting.

Enormous court resources are consumed by these scorched-earth disputes and they are almost always conducted by self-represented litigants who lack self-control or objectivity.

Although Watchuk was willing to let both sides in this apocalypse cover their own legal costs, the father’s continuing belligerence overwhelmed her. She issued a “special costs” award — a punishment only imposed by a court for reprehensible conduct.

“The father does not demonstrate respect or the ability to communicate respectfully,” said Watchuk, itemizing the many requests to the man to cease his objectionable conduct and behave himself.

“The father’s communication through the mother’s counsel has been and continues to be vitriolic to the degree that it has become impossible.”
During one access meeting, the father swore at a cousin of the mother’s while holding his baby son. In an exchange with his wife’s lawyer, he made disparaging remarks about the man’s daughter and their Jewish traditions.

“The father rightly demands respect for his (Sikh) culture,” Watchuk said.

“It should go without saying that the culture and religion of all participants in the justice system are deserving of respect. The sanctity of the family of counsel is fundamental.”
In her mind, he was acting like “a malicious bully.”

The father maintained that his outrageous behaviour was the result of “unique, extended and extraordinary stress and strain, arising from a circumstance that had no end in sight,” that he had been left “in limbo for years.”

In his mind, a confluence of factors impaired every facet of his life — from his fundamental liberties, access to his children, ability to earn an income, and left him at one point without a home or furniture.

The justice had little sympathy.

“In the trial I first mentioned the necessity for respect and civility to the father,” Watchuk said.

“I then reminded him of it. I stopped the trial on at least two occasions when those instructions were wholly disregarded. I explained further that civility and respect for the mother and her counsel not only assisted the court proceedings but were fundamental to the ability of the process to achieve a result which was in the best interests of the children.”

He authored much of his own trouble, she added, and his intransigence pushed her to impose special costs.