Substituted Service

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Substituted Service

Service of process upon a defendant in any manner, authorized by statute or rule, other than Personal Service within the jurisdiction; as by publication, by mailing a copy to his or her last known address, or by personal service in another state.

substituted service

n. accomplishing service (delivery) of legal documents required to be served personally by leaving the documents with an adult resident of the home of the person to be served, with an employee with management duties at the office of an individual, with such an employee at corporate headquarters, with a designated "agent for acceptance of service" (often with name and address filed with the state's Secretary of State), or in some cases (like a notice to quit the premises) by posting in a prominent place followed by mailing copies by certified mail to the person to be served. Such service is considered "constructive" delivery. (See: service, service of process)

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It might well be, therefore, that the Canadian approach could also benefit from an international convention or set of principles addressing when to allow substituted service, including e-mail, on foreign defendants.

On the other hand, however attractive it might be to emulate the English and Australian rules of civil procedure in this regard by explicitly forbidding a court to authorize substituted service when contrary to the receiving country's laws, we do not believe that such an approach would necessarily be in the interests of litigants with bona fide claims against elusive foreign defendants, especially in the absence of an agreed international approach to the validity of electronic service in appropriate transnational cases.

Hence, a plaintiff may not serve a defendant abroad by e-mail or any other substituted service method without court approval.

As indicated in the Introduction, this article does not aim to provide a comprehensive review of the practices of foreign jurisdictions but focuses instead on three common law jurisdictions with developed statutory law and/or caselaw regarding service on foreign defendants by e-mail or other forms of substituted service.

For example, Germany allows service by publication as a form of substituted service.