You’ve been served… by private message on Torontojungle.com

When you want to sue someone on the internet, simply finding them to serve them documents can be a real pain in the ass. But now lawyers like me will have a new tool in their arsenal thanks (?) to Brian Burke. Service by… message board? Ok then.

So let’s take a step back here so I can explain what’s going on as best I can. When you sue someone, you have to “serve” them, meaning that you have to officially give them documents like a Statement of Claim that starts a lawsuit. You can’t sue someone if they don’t know about it!

Normally, you serve someone by a process called personal service. An important person charged with this task – a bailiff, sheriff, constable or any number of other interesting titles – walks up to you or goes to your office and hands you the document. You’ve seen it on Law & Order a million times – someone’s always handing Jack McCoy a folded blue paper and saying “you’ve been served”.

Sometimes though, you have a problem. Personal service may be impossible or impractical for any number of reasons. Often you just can’t find the guy you want to sue! He has no fixed address, or he lives on a remote island in the South Pacific where bailiffs are scarce, or on the internet, you don’t even know his real name or where he lives. Now fortunately (well fortunately for lawyers and people who like to sue) the law usually provides for various alternative modes of service. In certain circumstances, service may be done by mail, or by posting a notice in a newspaper, or email, or other ways. Usually it takes some sort of permission from the Court to do so.

Let’s take British Columbia for example (you’ll see why in a minute). Rule 4-4 of The Supreme Court Civil Rules says that:

Alternative service methods

(1) If it is impracticable to serve a document by personal service or if the person to be served by personal service
(a) cannot be found after a diligent search, or
(b) is evading service of the documents,

the court may, on application without notice, make an order for substituted service granting permission to use an alternative method of service.

This is not uncommon. Here in Quebec for example, the Code of Civil Procedure‘s Article 138 says that “The judge or clerk may, on motion, if the circumstances so require, authorize a mode of service other than those provided by articles…”. Generally, rules will state that if somehow normal service is not possible for whatever reason, courts have the power to order some kind of special service, or “substituted service”.

In the internet age, this has taken on special significance. People on the internet are notoriously hard to find. And often need to be sued! Courts are using these orders to order service by novel ways. Service by Facebook has been ordered numerous times, even here in Canada. In the UK, a Court even ordered service by Twitter. Internet lawyers (ahem) love these – it gives them significant options.

All of which brings us to this week. You all know by now about the Brian Burke lawsuit. In case you are just catching up, Brian Burke, former GM of the Toronto Maple Leafs, is suing 18 individuals for defamation in the BC Supreme Court because on the internet they wrote, or repeated a rumour, that Brian Burke was the father of sportscaster Hazel Mae’s baby. These 18 individuals, however, were not sued under their real names, but under their internet handles, like mowerman, slobberface and Sir Psycho Sexy. Some of these defendants were commentors on blogs, and some of them made comments on various message boards or forums, including Torontojungle.com.

But how to serve these defendants? One of the defendants is literally named “NoFixedAddress”. Good luck finding him for personal service! So on Tuesday, Brian Burke’s lawyers went into BC Supreme Court, and asked for a special mode of service. The lawyers filed an Application for Substituted Service. In the Motion, they asked the Court to order that service against seven defendants, who had all posted on various message boards (called the “Message Board Defendants”), should be made by private message on the board. If you are a member of any board like this, you know how that works. Members of the message board are able to send private messages to each other, sort of like a private email. So Mr. Burke’s lawyers want to serve these seven defendants by sending them private messages, undoubtedly under the clever username “BurkeLawyer”.

In the Motion, Mr. Burke’s lawyers cite the BC Rule 4-4 I showed you above. After some legal mumbo jumbo about precedent and the like, the lawyers explain:

Personal Service of the Notice of Civil Claim on the Message Board Defendants is impracticable. The Plaintiff does not know who the Message Board Defendants are or where they are located, and there is no cost-effective means of discovering this information. The only readily-apparent means of finding out would be to seek production orders against the various internet service providers for or hosts of the Message Boards… (but) such a course of action would be lengthy, time-consuming, disproportionate and may ultimately be ineffective

Well it didn’t take long because later that day the order was granted. Mr. Burke can serve those seven defendants by private message. Unfortunately, there are no written reasons for granting the order, though supposedly there will be in the near future. They will be juicy (I hope) and precedent-setting, because to my knowledge, no order allowing this type of service has ever been granted. Wow.

Super-analysis fun time!

I am uncomfortable jumping to any conclusions or analysis because there are no written reasons attached to this order. But that won’t stop me!

First, no matter what I think of the Burke lawsuit, this is an important decision, and in a way, I am kind of happy about it. I am an internet lawyer. I too, have suffered the problem of not being able to find the person I need to sue except in some online space. This expansion of methods of online service to new methods and locations (in this case, private message on a message board) can only help me and my clients in the long run. Giddyup.

With that said, there are some issues! The whole point of service is to make the person aware that they are being sued. Allow me to quote myself (whoa, dude) from the CBC article I linked to above:

“Some message boards, if you get a private message, you’ll get an email notification that you have a new message,” he (that’s me!) said. “In the cases where you don’t get this email notification, if you don’t log on to this message board for a period of months. . . you would never know that you have this new message. And as a result, you would never know that you have been served.”

So that goes to one of my main issues here. 5 of the 7 Message Board Defendants are on boards that have no email notification of new private messages. So they may never know they are being served if they don’t log on. Interestingly, Mr Burke’s lawyers kind of addressed that in the Motion:

It is also reasonably likely or probable that the substituted service will come to the attention of the Message Board Defendants. According to the information available on their profiles on the Message Boards, the Message Board Defendants regularly log into the accounts from which they posted the Defamatory Statements on the Message Boards.

Well, the problem there is that past behaviour does not necessarily predict future behaviour. Just because they have logged on regularly in the past does not mean they will in the future. And imhlo “reasonably likely” is not the greatest standard for service of legal documents, that are commonly served to you by an individual who works for a process server washington d.c. company to ensure you have the correct documents.

This is important because if a defendant doesn’t get the notice, he won’t show up in Court (what we lawyers call “appear”) and after a period of time (33 days in this case) Mr. Burke can go into Court and get a “default judgment” against that defendant for “failure to appear”. That’s a fancy way of saying you snooze you lose. This is a serious ramification for not knowing you’ve been served.

Another issue is that there was an alternative here. The Motion states that the lawyers asked the operators of the message boards for information about the seven defendants, but the message board operators said “sorry buddy not on my watch” (I’m paraphrasing). At that point, what should the lawyer have done? Just go into court and get an order ordering those operators to turn over the info. Most likely, the Court would have granted such an order. Now, as seen in the quoted paragraph above, the Motion says that process would have been too expensive and time-consuming. Meh. Time-consuming? Write the same motion seven times, change the name, make them all be presentable in court the same date and time, and you’re done! As for expense, look, you want to dance you have to pay the piper. You want to sue 18 people on the internet, you are going to have to spend a few shekels. Mr. Burke reportedly was paid $3 million per year as GM of the Leafs. He’s not poor.

So if a defendant doesn’t appear, Mr. Burke can most likely get a default judgment against some anonymous people. What then? You’ve got a judgment awarding some monetary damages against slobberface. Well, you have to go back to court to get a court order ordering the message board to turn over information about slobberface so you can collect. You should have just gotten that court order in the first place.

So as an internet lawyer I am happy to have a new weapon in my arsenal. From a practical perspective, however, this type of service may have some issues.