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Human Rights (Ontario) Law
(30 September 2009)

Chapter 14 - Service of Documents

  1. Overview
  2. Service ('Delivery')
    (a) Regular Methods
    (b) 'Regularizing' and Substituting Service
    . Regularized Service
    . Substituted Service
    . Address Unknown at Commencement of Application
    . Address Unknown After Application Commenced
    (c) Consequences of Failure of Service
  3. Filing and Other Communications with the Tribunal
    (a) Overview
    (b) Tribunal Practice Direction
    (c) Filing Methods
    (d) Filing Verification ("Statement of Delivery")
    (e) Other Written Communications with the Tribunal
  4. Counting Time
    (a) Overview
    (b) Counting Time
    (c) Deemed Service
    (d) Deemed Filing
------------------------------


1. Overview

Legal proceedings are all about documents. This chapter addresses the technical requirements of serving documents on other participants (aka 'delivery'), filing them with the Tribunal and associated time requirements. These details are sometimes tedious, but they are necessary knowledge for anyone involved with a Code application. Failure to serve and file your documents in an acceptable and timely fashion can have drastic negative results for your case.

First, some basic terminology clarification:
  • "serve" means to give a copy of the document to another party or
    participant (note that the Tribunal Rules use the term "deliver"
    to mean the same);

  • "file" means to give a copy of the document to the Tribunal [Rule
    1.4].

2. Service ('Delivery')

(a) Regular Methods

The Rules [1.21] approve several different ways of serving (delivering) documents to other participants, namely:
  • hand delivery;

  • regular, registered or certified mail;

  • courier;

  • fax, but only if the document is less than (twenty) 20 pages in
    length, documents 20 pages or more may only be faxed with the
    consent of the receiving party;

  • e-mail, where the person or parties receiving the document has
    consented to e-mail delivery; and

  • any other way agreed upon by the parties or directed by the
    Tribunal.
Obviously, not all methods of service are immediately effective. This gives rise to the concept of 'deemed delivery', which is discussed in s.4(c) below.

Many laypersons feel that all legal documents need to be sent by registered or certified mail, so that paper proof is available of the date of mailing. This is not a common practice amongst lawyers, and in the vast majority of cases fax confirmation sheets are preferred due to their convenience and low cost. Normally the only situation in which I would consider something like registered or certified mail would be for the document originating the proceeding (here the 'Application'), and then only if I was hard up against a limitation period (and even then I would probably use a courier, with delivery confirmation, instead).

(b) 'Regularizing' and Substituting Service

. 'Regularized' Service

In civil litigation there is a practice know as 'regularizing' service, which happens when a court approves an irregular method of service after-the-fact. When an irregular form of service is sought before the fact it is usually termed "substitute" service (addressed below).

A typical example of regularized service would be when, in the course of a hearing, it becomes apparent that a document has obviously come to the attention of a party (somehow) due to their subsequent possession of it, despite the fact that regular service has not been performed. In such a case the court would normally just inquire of the party how and when they obtained it and, if appropriate, note on the trial record (written judge's notes kept in the file) that service had been either dispensed with or regularized.

The Tribunal has ample authority under its broad discretionary procedural jurisdiction to regularize service [Rule 1.7(w): "take any other action that the Tribunal determines is appropriate"].

. Substituted Service

"Substituted" service on the other hand may be sought when a party is having particular difficulty in serving a party in accordance with the normal Rules. In that case they should make a motion to the Tribunal [see Ch.11: "Motions"], setting out the nature of the difficulty and offering a different form of service suited to the situation. If the Tribunal agrees then they will so order and service may be performed in that fashion.

The Tribunal has ample authority under its broad discretionary procedural jurisdiction to substitute service [Rule 1.7(w): "take any other action that the Tribunal determines is appropriate"].

. Address Unknown at Commencement of Application

With regard to the common situation where a party seeking to initiate an application does not know the current address of a respondent, note that Rules 1.21 and 1.22 are unfortunately ambiguous on this issue, at least with respect to hand delivery. Rule 1.21(a) cites 'hand delivery (period)' as a service option, but Rule 1.22(e) (discussing effective date of service) implicitly allows hand delivery at a last known address [ie. "with a person at the party's last known address"].

In my opinion, if the serving party is aware that the receiving party has moved, it would be risky to rely on the 1.22 reference to hand-deliver at a last known address, unless that is the only option available to meet a pressing limitation deadline [and even then note the available extension for the limitation period: Ch.8, s.2(f): "Private Applications: Commencing Applications: Limitation Period"].

. Address Unknown After Application Commenced

However when an application has already been commenced and another party 'goes missing' (ie. mail returned undeliverable), then substitute service may not be necessary as other special rules may become involved, namely:
Rule 1.13
A party and a party's representative must notify the Tribunal and all parties and their representatives, in writing, of any change in their contact information, as soon as possible.

and

Rule 5.4
The Tribunal may finally determine an Application without further notice to any person who cannot be contacted by the Tribunal according to the contact information provided to the Tribunal by that person.
This issue is discussed in greater depth in Ch.12, s.3(d): "Summary and Related Proceedings: Summary Proceedings Where Non-Compliance or Non-Participation: Summary Dismissal Where Non-Contact".

(c) Consequences of Failure of Service

"Where a party fails to deliver material to another party or person as required by these Rules, the Tribunal may refuse to consider the material, or may take any other action it considers appropriate" [Rules 5.6]. Note that the "may" makes it discretionary, ie. the Tribunal can but does not have to refuse the material.

A common response in most courts and administrative tribunals to an inadvertent or minor failure to serve is a simple adjournment, sometimes with a costs order if a party is particularly blameworthy (and assuming the tribunal has costs jurisdiction, which the Human Rights Tribunal does not). That said, this is another oppourtunity for the Tribunal to use technical mistakes to kneecap one's case.


3. Filing and Other Communications with the Tribunal

(a) Overview

In civil litigation practice, it is standard procedure whenever a document is prepared and served to then prepare an additional 'affidavit of service', which is then - together with the main document - filed with the court. Courts will not normally accept such documents for filing without being accompanied by an affidavit of service or some equivalent (there are other forms of service and service acknowledgement).

The Code has similar requirements for service and filing of its documents, with of course the exception of the Application and Responses which are - once filed - served by the Tribunal itself (note that Replies must be served by parties: Rule 9.3)[Rule 1.20]:
Rule 1.20
A party filing any document, other than an Application (Form 1) or a Response (Form 2) under sections 34(1) or 34(5) of the Code, must deliver a copy of the document to all other parties to the Application and must verify that s/he has done so by filing a Statement of Delivery in Form 23.
(b) Tribunal Practice Direction

The Tribunal has issued a Practice Direction on Filing, linked here for reference:

Practice Direction: Filing

While this Practice Direction is entitled "Practice Direction on Electronic Filing of Applications and Responses by Licensed Representatives (October 2008)", it is by no means limited to electronic filings. Rather, under the guise of a filing requirement, it purports to impose duties and requirements on counsel that intrude into the solicitor-client (and paralegal-client) relationship that are quite unwarranted and beyond the Tribunal's jurisdiction. These include the following:
By filing, the licensed representative undertakes he/she is
authorised to represent the client, that their client has reviewed
the entire document and the client has confirmed the following
declaration contained in the respective forms:

To the best of my knowledge, the information in my (application or response) is complete and accurate.

I understand that information about my (application or response) can become public at a hearing, in a written decision, or in other ways determined by Tribunal policies.

I understand that the Tribunal must provide a copy of my (application or response) to the Ontario Human Rights Commission on request.

I understand that the Tribunal may be required to release information requested under the Freedom of Information and Protection of Privacy Act (FIPPA).
While reviewing the text and other legal implications of a filing with a client before filing is in most circumstances good practice, it is not for the Tribunal to require it on the threat of non-acceptance of a supposedly 'incomplete' pleading [see Ch.8, s.2(g): "Private Applications: Completeness of Applications"; also s.3(c) re Responses]. Professional standards are the statutory mandate of the Law Society, not the Tribunal.

Such unwarranted 'certification', lacking any Tribunal jurisdiction basis is reminiscent of similar high-handed practices that I have written on respecting welfare (Ontario Works) and ODSP (Ontario Disability Support Program) [see the "Information Eligibility" chapters in both of those Isthatlegal.ca] Legal Guides].

As noted, it is likely that the Tribunal will enforce this requirement by simply not accepting pleadings that lack this certification. This form of de facto coercion is a sad comment on the state of today's administrative law culture, and yet another impediment to robust and forthright advancement of the legal rights of Ontario citizens.

(c) Filing Methods

'Filing' of course means giving a copy of a document to the Tribunal. Acceptable methods of filing are as follows [Rule 1.17]:
  • fax transmission to the Tribunal (toll free: 866 355 6099);

  • hand delivery to the Tribunal office at:

    Human Rights Tribunal of Ontario
    14th Floor
    655 Bay St
    Toronto
    M7A 2A3

  • courier delivery to the Tribunal office (as above);

  • regular, registered or certified mail to the Human Rights
    Tribunal of Ontario (as above);

  • e-mail to HRTO.Registrar@ontario.ca; or

  • otherwise, as directed by the Tribunal (this would require some
    positive order or communication from the Tribunal).
Obviously, not all methods of filing are immediately effective. This gives rise to the concept of 'deemed delivery', which is discussed in s.4(c) below.

The Human Rights Legal Support Centre and the Human Rights Commission have special (and mandatory) electronic-filing arrangements made with the Tribunal [Rule 1.18].

Many laypersons feel that all legal documents need to be sent by registered or certified mail, so that paper proof is available of the date of mailing. This is not a common practice amongst lawyers, and in the vast majority of cases fax confirmation sheets are preferred due to their convenience and low cost. Normally the only situation in which I would consider something like registered or certified mail would be for the document originating the proceeding (here the 'Application'), and then only
if I was hard up against a limitation period (and even then I would probably use a courier, with delivery confirmation, instead).

(d) Filing Verification ("Statement of Delivery")

With the noted exception of the original Application and Responses to it, it is almost universal practice that all documents are served on the other parties and participants prior to being filed. In those circumstances the Rules require a "Statement of Delivery", verifying service, to be filed at the same time as the filing of a copy of the served document [Rule 1.23].

In the unusual case where a document is being served but not filed with the Tribunal, a Statement of Delivery is still required to be filed within two days after 'deemed' service. 'Deemed' service is explained below in s.4(c).

The form used for this is:

Form 23: Statement of Delivery

This form will call for information identifying: the file number, parties, the person who performed the service and their contact information, the documents, and the dates of service [Rule 1.16].

(e) Other Written Communications with the Tribunal

General (non-pleading) communications (such as letters) to the Tribunal should also quote file identification information, and may be written in either French or English [rule 1.11].
Note:
The issue of language of proceedings and language interpretation is discussed in Ch.16, s.2(d): "Hearings: Procedures Common to all Forms of Hearing: Language of Proceedings".
They should be addressed to the Registrar at [Rule 1.12]:
Registrar
Human Rights Tribunal of Ontario
14th Floor
655 Bay St
M7A 2A3
Normal delivery of such communications is by any of the methods listed in (c) above.

It is essential that copies of any communications be delivered to other participants as well [Rule 1.12], though simple correspondence (ie. documents which are not being formally filed as pleadings, motions, disclosure or other Rule-required duties) need not be accompanied by a "Statement of Delivery". Normal delivery of such correspondence would be by simultaneous regular mail to the Tribunal and all the parties.


4. Counting Time

(a) Overview

Throughout the Rules are numerous service and filing-related time requirements. This section describes how time is calculated for those purposes, and also the related concept of 'deemed service', which applies whenever a method of service is not considered to be immediately effective (eg. mail).

If you run into difficulties with late service or filing, recall that the Tribunal may, on its own initiative or on motion by a party [see Ch.11: "Motions"] "lengthen or shorten any time limit in these Rules".

While making a motion to extend service time for a few days may seem unnecessary work, the implications of not doing so can be harsh [see s.2(c) and Rule 5.6]. Further, it will always be uncertain whether the Tribunal will accept late-filed documents [Rule 5.1] without a time extension order, which may lead to them being returned pending an order to extend time. A common practice when faced with such a situation is to obtain written consent from the other parties (all of them) waiving objection to the late service, and then to send this by regular correspondence to the Tribunal with your own letter requesting that the Tribunal's Rule 5.1 discretion be exercised to regularize the service.

(b) Counting Time

The general legal counting rule, which also applies to the Tribunal's processes, is that whenever counting a number of days between events you do NOT count the first day but you DO count the last [Rule 1.9]. For example, if you face a 35 day service deadline to file a Response to an Application served on you on 01 September, then counting to determine your deadline goes like this:
. do not count 01 September ......... 0 days
. count 2-30 September ............... 29 days
. count 1-6 October ...................... 6 days
--------------------------------------------------------
.................................................... 35 days
Your deadline day is 6 October, and you have until the Tribunal's close of business on that day to file your Response. Of course when the method of filing you use is not immediate, you need to be aware of when your service is effective. Here the concept of 'deemed service' [see (c) below] comes into play: eg. filing the Response by regular mail on 05 October will not be adequate due to the Rule that mail service is only 'deemed' effective five days after the date of the postmark.

Further, when counting count calendar days [Rule 1.8], including holidays (below), BUT when the last day lands on a day that is a holiday then the counting bumps forward to the next non-holiday day [Rule 1.10]. So in the above example, if 06 October is a Saturday, you have until Monday 8 October to file your Response.

Holidays are weekend days and "days on which the Tribunal's office are closed, which - barring emergencies - should normally be statutory holidays [Rule 1.4]). Ontario's statutory holidays are discussed in the folloowing Isthatlegal.ca link:

Small Claims Court (Ontario): Ch.7, s.4: Time Limits: Holidays

(c) Deemed Service

Obviously the different methods of service listed in s.2(a) above are not all immediately effective. This creates the concept of 'deemed' dates, which is really just a way of accounting for delivery method delay.

Great care must be taken to ensure that if you use a non-immediate form of service that you have still served your document in time.

Deemed service (which applies to the Tribunal as well) occurs as follows [Rule 1.22]:
  • hand delivery is immediate (ie. no delay);

  • mail, on the 5th day after the postmark date;

  • fax, when the person sending the document receives a fax
    confirmation receipt, but if the fax confirmation receipt
    indicates a delivery time after 5 p.m., delivery will be deemed
    to have occurred the next day;

  • courier, on the second day after it was given to the courier;

  • e-mail, on the day sent or if sent after 5 p.m., delivery will be
    deemed to have occurred the next day;

  • by hand, immediately when given to the party or when left with a
    person at the party's last known address.
(d) Deemed Filing

Obviously the different methods of filing listed in s.3(c) above are not all immediately effective. This creates the concept of 'deemed' dates, which is really just a way of accounting for filing method delay.

Great care must be taken to ensure that if you use a non-immediate form of filing that you have still filed your document in time.

Deemed filing dates (which apply to the Tribunal as well) occur as
follows [Rule 1.19]:
  • fax, when the person sending the document receives a fax
    confirmation receipt, but if the fax confirmation receipt
    indicates a time after 5 p.m., filing will be deemed to have
    occurred the next day;

  • e-mail, when the person sending the document receives an e-mail
    confirmation from the Tribunal, but if the e-mail confirmation
    indicates a time after 5 p.m., filing will be deemed to have
    occurred the next day;

  • hand delivery, courier, or mail, on the date of receipt stamped
    on the document by the Tribunal.

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