Lawyers can’t serve insurers with auto claims just because they can’t find the defendants: court

Counsel for car crash claimants can’t simply serve their lawsuits on the defendants’ insurance companies just because it’s ‘inconvenient’ to serve the defendants with the claim, Ontario’s Superior Court has confirmed.

“The three most important words in [Ontario’s Rules of Civil Procedure regarding service of a lawsuit] are ‘impractical,’ ‘prompt’ and ‘may.’ These are not synonymous with ‘inconvenient,’” Ontario’s Superior Court ruled in a decision released Jun. 26.

In Bigabo Mugunda v. Miller-Richard et al., a claimant’s lawyer sought permission to substitute service to the defendant’s car insurer, TD Insurance. The court denied the request.

“In a motion of this nature, there is an obligation upon counsel to show that they are unable to carry out prompt personal service,” Ontario Superior Court Associate Justice Imran Kamal ruled. “Substituted service is not intended to spare a plaintiff the inconvenience or expense of personal service, if the latter can be effected. Mere difficulty in serving a defendant personally is not enough.”

Background

The case, which has not been decided, is about a motor vehicle accident that occurred on Dec. 26, 2023, involving the defendant, Kiersten Chomiak. A lawyer for the claimant, Antos Bigabo Mugunda, issued a statement of claim on Jun. 19, 2024.

A law clerk at the lawyer’s firm directed a process server to serve the statement of claim on Chomiak. The process server made three failed attempts to serve Chomiak at her home between Jun. 22 and Jul. 4, 2024.

“All the evidence states is that ‘there was no response to the door on any of these occasions,’” Kamal’s ruling says.

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The process server told the law clerk he believed Chomiak may not be answering her door “as she resides in a dangerous neighbourhood,” as the court decision explains. “There is no further detail as to why Mr. McNulty [the process server] thinks the defendant would not answer the door.”

On Jan. 30, 2025, the claimant’s lawyer wrote to the defendant’s auto insurer, TD Insurance, providing them with a copy of the statement of claim. The insurer asked for an affidavit of service showing the insured/defendant had been served.

The lawyer said Chomiak had not been served, asking the insurer for Chomiak’s current address. The insurer refused to confirm the defendant’s current address.

The claimant’s lawyer then sought an order from the court for substituted service, meaning it was enough that the insurer had been served. The insurer would then be responsible to make the defendant aware of the claim.

The court denied the lawyer’s request for the order, saying it’s only available under limited circumstances outlined in caselaw. The court said the lawyer hadn’t done enough to serve Chomiak.

“The evidence does not establish that all reasonable steps were taken,” Kamal wrote for the court. “For example, the process server did not leave a note at the home any of the times they attended. No one tried to call the defendant. No one tried to locate the defendant’s email address or social media. In this era, reasonable efforts must include online searches.

“I do not have evidence of such efforts. In my view, all reasonable steps were not taken.”