Monday, April 20, 2015

You've Been Served - On Facebook

In a March 27, 2015 decision in Baidoo v Blood-Dzraku, 2015 NY Slip Op 25096, New York County Supreme Court Judge Mathew Cooper permitted substituted service of a divorce summons via Facebook: 

As recently as ten years ago, it was considered a cutting edge development in civil practice for a court to allow the service of a summons by email. Since then, email has all but replaced ordinary mail as a means of written communication. And while the legislature has yet to make email a statutorily authorized method for the service of process, courts are now routinely permitting it as a form of alternative service. 
The past decade has also seen the advent and ascendency of social media, with websites such as Facebook and Twitter occupying a central place in the lives of so many people. Thus, it would appear that the next frontier in the developing law of the service of process over the internet is the use of social media sites as forums through which a summons can be delivered. In this matrimonial action, the issue before the court, by way of plaintiff-wife's ex parte application, is whether she may serve defendant-husband with the divorce summons solely by sending it through Facebook by private message to his account.
While there has been much buzz in the press about this New York ruling, from a Canadian perspective, substituted service by Facebook is by no means a new development.

In fact, such service has been ordered by Canadian courts, at least occasionally, since 2009.

As discussed in a 2009 post on this blog, Alberta Court Allows Substituted Service By Facebook, in Knott v. Sutherland, [2009] A.J. No. 1539 (Alta. Q.B)., Master Breitkreuz permitted substituted service upon one of the multiple defendants in an action by sending notice of the action to the Facebook profile of that defendant.

In the British Columbia case of Bryne v. Howard, [2010] FMCAFAM 509 (Fed. Mag. Ct.), service of a child support application via Facebook and other electronic means, was permitted.

As well, in the unreported 2014 Ontario Superior Court Justice case of  Juzytsch v. Terlecki, Madame Justice Susan Healy also permitted substituted service of a Statement of Claim via Facebook.

As was noted in the 2013 ruling of the B.C. Supreme Court in Burke v. Doe, a defamation case involving former former Toronto Maple Leaf General Manager Brian Burke, Canadian courts have also permitted substituted service via message boards and Twitter. 

In permitting service via personal message on a message board in the Burke case, Master MacNaughton held:
[21] In my view, it is reasonably likely, or probable, that notice of the proceedings will come to the attention of the Message Board Defendants by the proposed method. Mr. Brandt’s affidavit establishes that, according to their profiles on the message boards, the Message Board Defendants regularly log into the very accounts on which they posted the allegedly defamatory statements and use message boards and the Internet as a regular means of communication. They will be notified that they have received a personal message upon logging into their account in an online forum in which they have chosen to participate. 
[22] In all these circumstances, I order that Mr. Burke may serve the notice of civil claim, filed April 26, 2012, on the Message Board Defendants by sending them a private message to the internet message board accounts maintained by them in the form attached to the notice of application. I required the form of the message to be amended to include the name and contact information of the lawyer at Heenan Blaikie from whom the Message Board Defendants may obtain the notice of civil claim and a copy of this order. In addition, I ordered that a similar notice be published in one edition of a national Canadian newspaper.
We would expect this trend of substituted service by social media to continue and develop as new modes of communication are adopted for more frequent use in the mainstream. 

- Garry J. Wise and Kenneth R. Bandeira, Toronto



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