Mullay v Shaba, 2023 ONSC 2022: Not So Fast — Courts Require Reasonable Efforts Before Substituted Service

The Ontario Superior Court of Justice continues to send a clear message to litigants and counsel alike: substituted service is not a shortcut. In Mullay v Shaba, 2023 ONSC 2022, the Court clarified the expectations placed on plaintiff counsel when attempting to serve a defendant and reinforced that reasonable steps must be taken to locate a defendant before seeking substituted service.

This decision serves as an important reminder that longstanding practices, no matter how common, must still align with statutory authority and procedural fairness.

Background of the Case

The case arose from a motor vehicle accident that occurred in 2020. Plaintiff counsel brought an ex parte motion seeking an order for substituted service of the Statement of Claim on the defendant driver by serving the defendant’s automobile liability insurer.

At first glance, this request may have seemed routine. It is not uncommon for plaintiff counsel to attempt personal service at the address listed on a motor vehicle accident report and, if unsuccessful, seek an order permitting service on the insurer. However, Justice Trimble made it clear that this approach is flawed when it is not supported by sufficient efforts to locate the defendant.

On March 29, 2023, the Honourable Justice Trimble dismissed the motion, concluding that the plaintiff had failed to take reasonable steps to locate the defendant before requesting substituted service.

The Court’s Clarification on Substituted Service

Justice Trimble addressed a misconception that has persisted in civil litigation for years. While serving a defendant’s automobile insurer has often been treated as a practical solution when a defendant cannot be located, the Court emphasized that this practice has no statutory foundation.

The responsibility rests squarely on plaintiff counsel to demonstrate meaningful efforts to locate the party to be served. Substituted service is not intended to replace those efforts; it is a remedy of last resort.

The Court reaffirmed that before substituted service is even considered, counsel must show evidence of diligent attempts to locate the defendant.

What Constitutes “Reasonable Steps”?

In Mullay v Shaba, the Court outlined specific examples of what reasonable efforts to locate a defendant should include. These steps may involve:

• Conducting Ministry of Transportation driver’s licence searches

• Performing licence plate searches

• Running Canada 411 searches

• Reviewing social media platforms

• Retaining third-party skip tracing services

Justice Trimble stressed that it is not enough to simply attempt service at one address and assume the defendant cannot be found. Plaintiff counsel must be prepared to show the extent of their efforts with supporting evidence.

If, after these steps, the defendant’s whereabouts still cannot be determined, the Court noted that the appropriate remedy is to seek an order dispensing with service, not substituted service.

When Is Service on an Insurer Appropriate?

The Court also clarified the limited circumstances in which substituted service on an automobile insurer may be appropriate.

An order for substituted service on an insurer should only be granted where:

• The insurer agrees to accept service on behalf of its insured; or

• There is evidence showing the insurer has knowledge of the insured’s current address and that serving the insurer would likely bring the claim to the insured’s attention; or

• Plaintiff counsel undertakes not to strike out a Statement of Defence if the insurer cannot produce the insured for an Examination for Discovery

Absent these conditions, serving an insurer is not a proper substitute for service on the defendant.

This clarification reinforces the principle that substituted service must be grounded in fairness and a genuine likelihood that the defendant will receive notice of the claim.

Why This Decision Matters

The decision in Mullay v Shaba has practical implications for plaintiff counsel, particularly in motor vehicle litigation. It signals a shift away from informal or assumed practices and toward stricter scrutiny of service efforts.

Going forward, counsel must be prepared to invest more time and potentially more cost into locating defendants before bringing motions related to service. Courts will expect detailed evidence of search efforts, not general assertions.

While this may increase litigation expenses at the early stages of a claim, it reinforces procedural integrity and ensures defendants are not deprived of notice without proper justification.

A Cautionary Note for Plaintiff Counsel

Justice Trimble’s decision underscores a broader theme emerging in Ontario courts: efficiency cannot come at the expense of procedural fairness. Counsel who rely on convenience rather than compliance risk have their motions dismissed.

This case serves as a cautionary reminder that motions for substituted service require careful preparation. Failure to demonstrate reasonable efforts may not only delay proceedings but also expose counsel to unnecessary costs and strategic setbacks.

Looking Ahead

Mullay v Shaba confirms that courts expect plaintiff counsel to take a proactive and thorough approach when attempting to locate defendants. The ruling clarifies that substituted service is not a procedural shortcut and should only be granted when supported by evidence and fairness considerations.

As litigation practices evolve, decisions like this one reinforce the importance of adhering to statutory requirements and judicial guidance, especially at the earliest stages of a claim.

Author Credit: This article is based on legal commentary by Sid Lakhanpaul.