This action arises from a 2020 motor vehicle accident. The plaintiff brought an ex parte motion seeking an order for substituted service of the statement of claim on the defendant driver by serving his automobile liability insurer. The insurer took no position on the motion. Justice Trimble dismissed the motion for two reasons: (1) the plaintiff’s failure to take reasonable steps to locate the party to be served; and (2) the insurer is not the insured’s agent for service.
(1) Before an order for substituted service can be made the plaintiff must take reasonable steps to locate the party to be served. It is not sufficient to merely look at the motor vehicle accident report and ask the defendant’s insurer if it has an address for the defendant.
(2) Substituted service is to be granted in a manner or to a place which is likely to bring the matter to the attention of the person being served. A court may only make an order that substituted service be effected on the defendant’s insurer where: the insurer agrees to accept service on behalf of its insured; there is evidence that the insurer has a current address for its insured and that by serving the insurer the insured is likely to become aware of the claim against him or her; or the plaintiff undertakes not to strike out the defence if the insurer cannot produce its insured person at examination for discovery. If the insurer is to be served on behalf of the defendant, substitutionally, it must be in addition to another method of service such as mailing to the defendant’s last address on record with the MOT or by publication in two editions of a newspaper in the locality where the defendant is known to reside or in a nationally circulated newspaper. Where the insurer is named in an order for substituted service, the order must provide that service be made on the insured person, by mail or delivery to the last known address of the named defendant, or at the address on file with the MOT. The order for substituted service should specify that once service is affected on the insured as directed, the plaintiff must provide to the defendant’s insurer a copy of the documents that were served, the order permitting substitute service, and the affidavit of service under the terms of the order permitting substituted service.
If the defendant’s whereabouts are totally unknown, the appropriate disposition is to dispense with service of the statement of claim. Where the court dispenses with service on the defendant, the order for dispensing with service should specify that the insurer must be served with a copy of the documents to be served and the order dispensing with service.