When it comes to the serving materials on a large number of respondents—whether it’s a few dozen, a few hundred, or more—the reported case law is extremely sparse. There is little guidance on appropriate methods of substituted service for groups of this size, let alone guidance on dispensing with service altogether.
In a recent unreported Superior Court of Justice decision, we were successful in obtaining an order dispensing with service on about 700 respondents so that a developer could proceed with its plan to build a subdivision.
The standard test to dispense with service under Rule 16.04(1) of the Rules of Civil Procedure has two prongs: it must be impractical to effect prompt service (meaning all reasonable steps have been taken to locate and serve the parties), and it must be in the interests of justice to dispense with service.
However, with a large group of respondents, what “reasonable steps” should an applicant be expected to take? Even if the applicant knows the location of each respondent and is able to serve them, it may not be reasonable in the circumstances to take any steps if the logistics and costs of service are prohibitive. However, reasonableness will also depend on the second prong of the test: the interests of justice.
The interests of justice take into account the interests of both the respondents and the applicant (although on an ex parte motion of this sort, greater weight will be given to the respondents’ interests). How will the proceeding affect the parties’ legal rights? Are serious allegations being made? How will success or failure impact the parties, financially or otherwise?
In the proceeding at hand, the applicant developer was seeking to delete an easement over its lands that was registered on title for hundreds of lots in an adjacent subdivision. This easement was preventing the development of the applicant’s subdivision. The easement, made years earlier, allowed the developer of the adjacent lands to run utility pipes under the applicant’s land. However, through an error, the easement had carried over to each of the lots in the adjacent subdivision.
Removing the easement would technically alter the respondents’ property rights, but without any negative legal or practical effects. Further, service on such a large (and in this case, indeterminate) number of respondents would have been possible but very costly. Therefore, the presiding judge granted our motion to dispense with service.
The decision shows that when an applicant seeks substituted service or no service for a large group of respondents, the court will tend to take a contextual and practical approach. Ultimately, it will weigh the impact on the respondents if the service requirements are relaxed or eliminated (e.g. potentially not receiving notice and judgement being given) with the impact on the applicant if service is required (e.g. creating a significant barrier to relief).
By: Kyle Gossen
