Serving documents

What this stage is

To serve (service)Serve (service)To formally deliver a court document to another party in a way the rules allow. Service lets the court know the other side received the document.Close definition of Serve (service) a document means to deliver it to the other side in a way the rules accept. The court needs to know the other side got it. Otherwise, it would not be fair to hold them to a deadline.

Service happens many times in a case, not just once. The first and most important time is when the plaintiffPlaintiffThe person or business that starts a court case by filing a claim. The plaintiff asks the court to order the defendant to pay.Close definition of Plaintiff serves the plaintiff's claimPlaintiff's ClaimThe court form that starts a Small Claims case (Form 7A). It names the parties, says how much is claimed and why, and comes with a Schedule A.Close definition of Plaintiff's Claim on each defendantDefendantThe person or business being sued. The defendant responds to the claim by filing a Defence.Close definition of Defendant.

What you need to serve, and when

• The claim. The plaintiff serves the issued claim on each defendant within 6 months after it is issued (Rule 8.01(2)).
• The Defence. The defendant serves the defenceDefenceThe defendant's written answer to a claim, saying what they agree with, what they dispute and why. In Small Claims Court it is Form 9A.Close definition of Defence (Form 9A) on the plaintiff and files it with proof of service, within 20 days of being served with the claim (Rule 9.01).
• Settlement conference documents. Each side serves its documents and its List of Proposed Witnesses at least 14 days before the settlement conferenceSettlement conferenceA meeting with a judge or court official to try to settle the case and prepare it for trial. It is held within 90 days after the first Defence is filed (Rule 13.01).Close definition of Settlement conference (Rule 13.03).
• Trial documents. Each side serves its documents and written statements on all parties at least 30 days before trialTrialThe hearing where a judge listens to both sides, looks at the evidence and decides the case. Most Small Claims cases settle before trial.Close definition of Trial (Rule 18.02).
• Motions. A motionMotionA request asking the court to make a decision on a specific issue during a case, such as more time or setting aside a default. It uses Form 15A and must be served at least 7 days before the hearing (Rule 15.01).Close definition of Motion is served at least 7 days before the hearing (Rule 15.01).

How to serve

The rules list the ways a document can be served. Some ways are allowed for a claim, and others only for later documents [VERIFY: approved methods of service for a Plaintiff's Claim and for other documents].

Common ideas you will see include handing the document to the person, leaving it at their home or business with certain people, and sending it by mail or courier [VERIFY: which of these apply and the conditions]. For a corporation, the rules say who can receive documents for it [VERIFY].

Who does the delivering also matters. Many people use a process server, a business that serves documents for a fee. Whether you can serve the claim yourself is something to confirm [VERIFY].

Service by mail and holidays can change a deadline. When a document is mailed, it may count as served some days after it was sent [VERIFY: how many days].

Proving service

After you serve a document, you prove it with an affidavit of serviceAffidavit of ServiceA sworn or affirmed statement that proves a document was served: who got it, what it was, and when, where and how it was delivered. In Small Claims Court it is Form 8A.Close definition of Affidavit of Service on Form 8A. The person who did the serving fills it out. It says who was served, what was served, when, where and how.

An affidavit is a sworn statement. It is usually signed in front of a commissioner for taking affidavitsCommissioner for taking affidavitsA person allowed to watch you swear or affirm that an affidavit is true and then sign it. Lawyers and paralegals can usually do this, and some court staff may too [VERIFY].Close definition of Commissioner for taking affidavits [VERIFY: who can commission it and any fee]. You then file it with the court.

Keep your proof safe. If the defendant never responds, you will need your Affidavit of Service to ask for default judgmentDefault judgmentA judgment made because the defendant did not file a Defence in time, without a trial. For a debt or fixed amount, it is requested on Form 11B (Rule 11.02).Close definition of Default judgment.

What you need to do

1. Make enough copies of the issued claim: one for each defendant, one for you, and one for the court file.
2. Choose an approved way to serve each defendant [VERIFY].
3. Serve every defendant within 6 months after the claim was issued.
4. Have the person who served complete Form 8A for each defendant.
5. Have the affidavit sworn or affirmed, then file it with the court officeCourt officeThe office at the courthouse where you file documents, pay fees and ask about your case. Staff can explain procedures but cannot give legal advice.Close definition of Court office.
6. Write down the date each defendant was served. Their 20-day clock starts from that date.

The deadlines at this stage

• Serve the claim: within 6 months after it is issued (Rule 8.01(2)). If you cannot serve in time, you may be able to ask the court for more time [VERIFY].
• Defendant's response: 20 days after being served (Rule 9.01). Use our defence deadline calculator to estimate it.

Forms

• Form 8A: Affidavit of Service

Common mistakes

• Serving the wrong version. Serve the issued claim, with the court file number, not your draft.
• Using a method that is not allowed for that document. A method that works for later documents may not work for the claim [VERIFY].
• Not keeping proof. Without an Affidavit of Service, the court may not accept that service happened.
• Missing a defendant. Each defendant must be served, and each needs their own proof.
• Letting the 6 months slip by. Serve early, in case the first try does not work.
• Getting dates wrong. Mail and holidays can shift deadlines. Write down exactly what happened and when.

What happens next

Once a defendant is served, they have 20 days to respond. If they file a Defence, read Responding to a claim to see what happens. If they do not respond, see Default judgment.

Need to go back? See Starting a claim (Form 7A).