Care in service important

There is a tendency on urgent matters to be causal about service, especially if counsel attends on a motion served improperly. Such an attitude is dangerous as the recent Superior Court decision in Ariza Technology Inc. v. Jonsa Technologies Inc., 2008 CanLII 39606 shows:



[4] This motion was brought by Ariza, on notice to the parties. It had not applied for ex parte relief. There is no evidence as to why ex parte relief would be required. It sent the motion materials to Jonsa by email. Jonsa although not prepared to fully argue the point, did make submissions with respect to the issue of service for the purpose of arguing that no Mareva injunction should be imposed, pending the hearing of this Motion. Ariza sent the Application materials to Jonsa using the email address that had been used by the parties in their normal business dealings. Jonsa submits that such is contrary to the Rules of Civil Procedures ("Rules") and that there are no valid grounds to order that service be dispensed with or that the service by email be validated. There was no evidence produced by Ariza with respect to why it had not been possible to serve Jonsa in accordance with the Rules. There was no evidence with respect to any other efforts that had been made by Ariza to serve Jonsa and no evidence to support the requests with respect to service. Ariza relies on the fact that Jonsa counsel attended at the hearing and was therefore aware of the proceedings. Ariza argues that as a practical matter the service should be validated. Ariza did not provide any legal authority for its argument. Jonsa argued that the supporting material that is required for a court to consider exercising its jurisdiction to validate service or to dispense with service, have not been met. I accept that proposition and find that Jonsa has not properly been served and deny the request for dispensing with or validating service.