Chapter 12-Alice’s Evidence
* The White Rabbit put on his spectacles. ‘Where shall I begin, please your Majesty?’ he asked.
‘Begin at the beginning,’ the King said gravely, ‘and go on till you come to the end: then stop.’
* He sent them word I had not gone
(We know it to be true):
If she should push the matter on,
What would become of you?
* My notion was that you had been
(Before she had this fit)
An obstacle that came between
Him, and ourselves, and it.
Don’t let him know she liked them best,
For this must ever be
A secret, kept from all the rest,
Between yourself and me.
* Sentence first, verdict afterwards.
o The Queen of Hearts
* ‘Who cares for you?’ said Alice, (she had grown to her full size by this time.) ‘You’re nothing but a pack of cards!’
Lewis Carroll (Charles Lutwidge Dodgson), Alice’s Adventures in Wonderland. Said by the King to the White Rabbit
For new lawyers (and even for some seasoned lawyers), the rules of civil procedure are like reading Lewis Carroll novels. Just when you think you know the answer, you fall, like Alice, down the proverbial rabbit-hole or gaze quizzically into the looking-glass.
The rules of civil procedure are supposed to be drafted to foster clarity, certainty and predictability to achieve, or at least approximate, procedural justice. For the most part, the rules accomplish this lofty goal.
However I invite you to take a short trip down one procedural rabbit-hole that I recently found. You may agree that it provides an interesting lesson on procedure that becomes “curiouser and curiouser”.
In Ontario, the Rules of Civil Procedure (RCP) provide for service on a corporation in different circumstances.
Service of an originating process is governed by Rule16.01 of the RCP:
GENERAL RULES FOR MANNER OF SERVICE
16.01 (1) An originating process shall be served personally as provided in rule 16.02 or by an alternative to personal service as provided in rule 16.03. R.R.O. 1990, Reg. 194, r. 16.01 (1); O. Reg. 131/04, s. 8.
(2) A party who has not been served with the originating process but delivers a defence, notice of intent to defend or notice of appearance shall be deemed to have been served with the originating process as of the date of delivery. O. Reg. 113/01, s. 2.
16.02 (1) Where a document is to be served personally, the service shall be made,
(c) on any other corporation, by leaving a copy of the document with an officer, director or agent of the corporation, or with a person at any place of business of the corporation who appears to be in control or management of the place of business;
One alternative to personal service is service on a lawyer under sub-Rule 16.03(2) which reads:
ALTERNATIVES TO PERSONAL SERVICE
16.03 (1) Where these rules or an order of the court permit service by an alternative to personal service, service shall be made in accordance with this rule. R.R.O. 1990, Reg. 194, r. 16.03 (1).
Acceptance of Service by Lawyer
(2) Service on a party who has a lawyer may be made by leaving a copy of the document with the lawyer or an employee in the lawyer’s office, but service under this subrule is effective only if the lawyer endorses on the document or a copy of it an acceptance of service and the date of the acceptance. O. Reg. 575/07, s. 17.
(3) By accepting service the lawyer shall be deemed to represent to the court that the lawyer has the authority of his or her client to accept service. R.R.O. 1990, Reg. 194, r. 16.03 (3); O. Reg. 575/07, s. 1.
When it comes to service of a notice of examination, the general rule is that service on the lawyer of record is acceptable pursuant to sub-Rule 34.04(1)(a) which reads:
HOW ATTENDANCE REQUIRED
34.04 (1) Where the person to be examined is a party to the proceeding, a notice of examination (Form 34A) shall be served,
(a) on the party’s lawyer of record; or
(b) where the party acts in person, on the party, personally or by an alternative to personal service. R.R.O. 1990, Reg. 194, r. 34.04 (1); O. Reg. 739/94, s. 2 (1); O. Reg. 575/07, s. 20 (1).
What if you are attempting to examine a person for discovery or in aid of execution on behalf of a party? According to sub-Rule 34.02(2), you have to either serve the person’s lawyer or effect personal service, but not by means of an alternative to personal service:
Person Examined on Behalf or in Place of Party
(2) Where a person is to be examined for discovery or in aid of execution on behalf or in place of a party, a notice of examination shall be served,
(a) on the party’s lawyer of record; or
(b) on the person to be examined, personally and not by an alternative to personal service. R.R.O. 1990, Reg. 194, r. 34.04 (2); O. Reg. 575/07, s. 20 (2). [emphasis added]
Now it gets tricky. Assume arguendo that you act for a party that has obtained judgment against a corporate defendant. As the judgment creditor’s lawyer, do you serve the notice of examination in aid of execution on the corporation’s lawyer, or one of the corporation’s directors, officers or employees? Consider sub-Rule 60.18(3) which states that you may examine:
(3) An officer or director of a corporate debtor, or, in the case of a debtor that is a partnership or sole proprietorship, a partner or sole proprietor against whom the order may be enforced, may be examined on behalf of the debtor in relation to the matters set out in subrule (2). R.R.O. 1990, Reg. 194, r. 60.18 (3). [emphasis added]
Service on Debtor
(7) Despite clause 34.04 (1) (a) (service on lawyer), a party who is to be examined in aid of execution shall be served with a notice of examination personally or by an alternative to personal service. O. Reg. 377/95, s. 5; O. Reg. 575/07, s. 1. [emphasis added]
But how do we reconcile sub-Rule 34.02(2)—which states that a person to be examined “in aid of execution” on behalf of a party may be served with a notice of examination by serving the party’s lawyer—with sub-rule 60.18(7) which states that service on a lawyer is exempted? Prima facie, one may argue that sub-Rule 34.01(1)(a) and sub-Rule 34.02 differentiate between examination of “a party” and examination of a person “on behalf of a party”. Sub-rule 60.18(7) only restricts service on a lawyer if the person to be examined is a “party”.
So, who then is a “party”? Intuitively, one would first consult the definition section of the RCP, but sub-Rule 1.03 offers no definitive (pun intended) answer. All it says is that a “’person’ includes a party to a proceeding; (‘personne’)”.
You have to dig deeper and consider Rule 36-Taking Evidence for Trial:
36.01 (1) In this rule,
“party” includes a party to a pending or intended proceeding. O. Reg. 8/07, s. 1.
36.02 (1) Subject to subrule (2), Rule 34 applies to the examination of a witness under rule 36.01, unless the court orders otherwise, and, for the purpose, a reference in Rule 34 to a party includes a reference to a party to a pending or intended proceeding. O. Reg. 8/07, s. 2.
(2) A witness examined under rule 36.01 may be examined, cross-examined and re-examined in the same manner as a witness at trial. R.R.O. 1990, Reg. 194, r. 36.02 (2). [emphasis added]
Now that you’ve followed me all the way down the rabbit hole, the journey finally ends here:
USE AT TRIAL
36.04 (1) In subrules (2) to (7), where an action,
(a) is brought by or against a corporation, “party” includes an officer, director or employee of the corporation;
The bottom-line: If you intend to examine a director, officer or employee of a corporate judgment debtor in aid of execution, you must serve your notice of examination personally or by an alternative to personal service, but not by service on the lawyer for the corporate judgment debtor.
Admittedly, this analysis is neither a paradigm shift nor a game-changer, but it does demonstrate that it takes more than blind faith to be a lawyer: READ THE RULES AND YOU WILL AVOID THE POOL OF TEARS.