Executive Summary: Key Legal and Evidentiary Issues

• The plaintiff sought substituted service of a statement of claim through the defendant’s insurer due to failed personal service attempts.

• The court assessed whether the plaintiff demonstrated that personal service was impractical under Rule 16.04(1).

• Evidence provided was deemed insufficient to justify substituted service, particularly on the insurer.

• Legal thresholds for serving through an insurer were not met, including insurer consent or proof of likely notice.

• The request to extend time for service was granted due to ongoing reasonable efforts.

• The outcome was mixed: substituted service was denied, but the plaintiff was allowed more time for service and to amend the claim.

Facts of the case

Antos Bigabo Mugunda commenced a civil action stemming from a motor vehicle accident that occurred on December 26, 2023. The statement of claim, issued in June 2024, named Kiersten Chomiak and Mark Miller-Richard as defendants. The plaintiff attempted personal service on Chomiak at her last known address on three separate occasions, but no contact was made. The plaintiff's process server believed Chomiak might be avoiding service due to concerns about the neighbourhood. The plaintiff also contacted her insurer, TD Insurance, in an effort to obtain her current address and effect service through them. TD Insurance declined to assist or confirm her location.

As a result, the plaintiff brought a motion seeking: (1) an order for substituted service of the statement of claim through TD Insurance; (2) service by registered mail to Chomiak’s last known address; (3) an extension of time to serve Chomiak; and (4) leave to amend the statement of claim.

Court’s analysis and decision

Associate Justice Kamal dismissed the request for substituted service. The court emphasized that substituted service under Rule 16.04(1) of the Ontario Rules of Civil Procedure is not meant to address mere inconvenience. It must be shown that prompt personal service is impractical and that substituted service is likely to notify the defendant. The plaintiff's efforts, while acknowledged, did not meet the evidentiary threshold. The court noted that no phone calls, emails, or social media searches were attempted and no notices were left at Chomiak’s residence. Furthermore, the process server’s statement about the neighbourhood lacked supporting detail.

The request to serve TD Insurance as a substitute was also denied. The court reiterated that such an order is exceptional and requires one or more of the following: the insurer’s consent to accept service, evidence that the insurer has the defendant’s current address, or an undertaking by the plaintiff not to strike out the defence if the defendant does not attend discovery. None of these conditions were satisfied in the evidence presented.

However, the court did grant an extension of time to serve Chomiak until September 30, 2025, recognizing that the plaintiff had made some reasonable efforts and the matter was still in the early stages. The court also allowed the plaintiff to amend the statement of claim to add a defendant related to another motor vehicle accident. The proposed amendment was not prejudicial and met the standard under Rule 26.01 for granting leave.

Outcome

The result was a mixed outcome. The court denied the plaintiff’s motion for substituted service, including service through TD Insurance, due to insufficient evidence and failure to meet established legal criteria. However, it granted an extension of time for service and allowed the plaintiff to amend the pleadings. The decision reinforces the principle that substituted service must be supported by thorough, demonstrable efforts to locate a defendant and ensure notice, while also allowing procedural flexibility when reasonable attempts have been made.