Serving the Defendant

You must serve the defendant with your claim. If you are suing more than one person for the same claim, you must serve each party to the claim separately. Even if the people live together or are married, they must be served separately.

There are specific documents that must be served before the matter will go forward. You must serve:

• the summons which tells the defendant when and where to appear in court
• your statement of claim
• the defendant information document provided to you by the court
• a draft defendant reply provided to you by the court
• the first appearance and case management conference document provided to you by the court

You must serve the above documents on the other party at least 30 days before the court date. The earlier you serve the defendant the better. The defendant may need time to prepare a response to your claim.

If you are unable to serve the defendant at least 30 days before the court date, you should advise the court. You will receive a new summons with a later date, so that you will have more time to serve the defendant.

A summons must be served in person or by registered mail.

Personal service is done by physically giving the person a copy of the documents. It is not necessary to obtain a signature from the person. You can just hand the documents to the person and tell them they are being served with court documents. If the person refuses to accept the documents, you should explain what the claim is about. You should then leave the documents as close to the person as possible.

There are specific rules for serving certain people or organizations.

To serve a summons on a person under 18 years of age, you must:

• give one copy of the documents to the minor, and
• give another copy to the parent, guardian or any other adult person at the address where the minor lives

Special rules apply to serving government bodies, such as a crown corporation or municipality. These rules are set out in The Small Claims Act. The court staff can explain the requirements.

Service on a corporation can be carried out by leaving a copy of the court documents with any officer or director of the corporation. You can also serve a clerk, manager or other representative at, or in charge of, any office or any other place where the corporation carries on business in Saskatchewan.

You may also serve a corporation by registered mail to the registered office or power of attorney of the corporation if there is one.

A profile report on the corporation from the Corporate Registry will have all of this information.

If there is a lawyer representing the party, court documents may be left with them. The lawyer would need to accept service by signing a copy of the document and indicating that they are the lawyer for that person.

Documents may be served outside Saskatchewan, without the necessity of a court order, in the same circumstances in which it would be allowed in the Court of King's Bench. More information may be obtained from the court staff.

You may be unable to serve documents. This could happen if you do not know where the person you want to serve lives and cannot locate them. It could also happen when you know where the person lives but you still have not been successful in serving them. This may be due to the other party avoiding service.

In these cases, you can apply to court for an order allowing an alternate method of service. This allows you to serve the person through different means.

You need to prepare a statement for the court outlining why you cannot serve the person. This should include all the steps you have taken to locate and serve the person as well as the costs to you so far in taking these steps. It should also include a proposed alternative way you think would work to serve the person, such as:

• serving a family member or someone else with whom you believe the party is in regular contact
• delivering the documents to the last known address of the party
• publishing a notice in a newspaper

If you think an application for an alternate method of service is necessary, speak to the court staff.

You must prove that the other party was served by completing an affidavit of service. An affidavit of service must be sworn before a Commissioner for Oaths or a Notary Public. You can find these individuals in the yellow pages of your local phone book or through online directories. You can also take the affidavit to the courthouse to be sworn. Do not sign it until you are in front of the Commissioner for Oaths or a Notary Public

The affidavit of service will vary depending on how the documents were served…

• If the documents were served in person, an Affidavit of Personal Service must be filled out by the person who served the documents. If you served the documents yourself, you can testify in-person instead of preparing an affidavit.
• If the documents were served by registered mail, you must attach the mailing receipt to an Affidavit of Service by Registered Mail.
• If someone from the Sheriff's Office served the documents, they will fill out a Certificate of Service instead of an affidavit.
• If the documents were served on the other party's lawyer, service is proved by producing the documents signed by the lawyer accepting service. An affidavit is not required in this case unless they did not provide a document accepting service.

The affidavits to prove service as well as other forms are available on the Courts of Saskatchewan website.

Keep a copy of the court documents that have been served and filed, as well as proof of service, for your records.

If you are successful in court, you may be reimbursed for the reasonable costs of service. Keep receipts or invoices that show costs you incurred when serving documents. Keep track of things like the number of attempts at service and the distance travelled. You can present these to the court when your costs are being discussed. An affidavit may be required in some cases to prove your costs.

The judge will want to be satisfied that the costs are reasonable having regard to all of the circumstances. This includes the amount of the claim and the methods of service available. For example, if you used a process server instead of registered mail you will have to justify the extra cost.