In most cases, especially where large sums of money are at issue, or where a statement of claim seeks substantial alteration of a person's rights, personal service of the initiating Court document is required and must be proved by an affidavit of such service.
If a party appears to be avoiding personal service of court documents, or if personal service is impracticable, a request may be made with the court to, instead of personal service (i.e. giving the document directly to the person), that the document be published in a local newspaper, served on a person believed to frequent the person or mailed to his (or her) last known address.
Usually, an application for an order allowing substituted service will set out that the person is evading service or that it would be impossible to personally serve the Court document.
Each jurisdiction typically issues rules of procedure, sometimes called rules of court or some similar name, in which are set out the circumstances in which substituted service may be requested. For example, in the Canadian jurisdiction of British Columbia, an entire chapter of the 2009 Rules of Court is dedicated to the process. Called Substituted Service, the essence of the rule is set out in §12.1 and §12.2 as follows:
"Where for any reason it is impracticable to (personally) serve a document ..., the court may order substituted service, whether or not there is evidence that the document will probably reach the person to be served or will probably come to the person's attention or that the person is evading service.
"Substituted service of a document is effected by taking the steps that the court has ordered to bring the document to the attention of the person to be served."
In Ontario, the Court Rules (§16.04) specify:
"Where it appears to the court that it is impractical for any reason to effect prompt service of an originating process or any other document required to be served personally or by an alternative to personal service under these rules, the court may make an order for substituted service or, where necessary in the interest of justice, may dispense with service."
The test of impracticality is standard but not universal. In England, for example, the Paragon decision reflected on the same wording in the relevant rules of court.
Other jurisdictions define how to effect personal service on individuals, corporations and the government and then add a similar provision for a form of substituted service such as publication as in Rule §315 of the Civil Practice Law & Rules of New York State:
"The court, upon motion without notice, shall order service of a summons by publication ... if service cannot be made by another prescribed method with due diligence."
- Paragon Group Ltd. v Burnell 1991 Chancery Division (Ch) 499.
- Rules of Civil Procedure, Revised Regulations of Ontario 1990, Regulation 190, enacted pursuant to the Courts of Justice Act
- Stevenson, W. and Côté, J., Civil Procedure Encyclopedia (Edmonton: Juriliber, 2003), Chapter 24.
- Supreme Court Rules, BC Regulation #221/90, enacted pursuant to the Court Rules Act