Law Times

Law times • OctOber 25, 2010 NEWS Lawyer calls for relaxation of Rules Continued from page 1 Th ey demand that applicants demonstrate attempts at tradi- tional service before granting an order for substitution. In the paper, Robertson sug- gested family law litigants are of- ten anxious to avoid being found. "Th is may be because they are an- ticipating the claim, for example, for return of a child, an increase in support or other predictable consequence to changes in cir- cumstances," she and McEwen wrote. But, they noted, "Th ose same people are often tethered to their phones or computers and will maintain a cyber address for purposes of communication with their base group." According to Muszynski, expanding the legal options to include electronic methods may dissuade respondents from evading service as a delaying tactic. "In my practice, it will be very benefi cial," says Muszynski, who practises civil litigation and family law. "I think just know- ing that this is an option will change the way we litigate." With a military base nearby, Imam seemed happy at meeting, Jiwa says Continued from page 1 Th at's exactly what Tabib did by reaffi rming her original decision and noting Jiwa's fail- ure to fi le was "not material" to her order given the waiver of his own rights of discovery. Despite all of the fuss, Jiwa says the Aga Khan seemed hap- py to be there and describes the tone of the 25-minute meeting as "cordial and respectful." "When he came here, there was nothing in his facial expres- sion or any comments he made that indicated he was at all reluctant," Jiwa says. "I think Mr. Gray either did not want to impose on him to come or thought we may be able to set- tle it ourselves, but this was an issue where the imam's input was absolutely essential." Jiwa is also confi dent the Aga Khan holds no grudges, despite the defendants' asser- tions that other senior Ismailis were actually leading the ac- tion and that letters purporting to come from the imam were forgeries. In Tajdin's statement of defence, he railed against the "usurper plaintiff " and claimed the Aga Khan had given his blessing to publishing the ma- terials during a ceremony in Montreal in 1992. At the meeting in Toronto, Tajdin veered from the typical format of examinations for dis- covery by simply asking for the Aga Khan's guidance. "We would never fi ght the imam," Jiwa says. "It's just not possible. You cannot be a be- liever and then fi ght your own spiritual leader. I fi rmly believe in the imam and I would lay my life for him any time." He adds that their assertions came from a desire to protect the Aga Khan. "It's not un- heard of that imams in the past have been misled, and there have been splits in the com- munity. My understanding was that the imam appreciated that. He could have voiced his displeasure, but I did not read that at all. He left a very posi- tive sense." But in the Ismaili commu- nity, Jiwa and Tajdin may still have some convincing to do. In the wake of the lawsuit, some she notes service can quickly be- come an issue in family matters with spouses and children scat- tered across the country. "Costs can be quite signifi cant. I think this has done a good job of showing that the judiciary is no- ticing and looking at more cost- eff ective measures. Th e court needs to get with the times and look at other options that would improve access to justice." Th e authors of the paper also said e-mail has distinct ad- vantages over traditional meth- ods of substituted service, such as delivery by registered mail. Litigants can tell almost imme- diately, for example, whether the e-mail address exists. At the same time, when a message goes to the wrong user, the recipient is far more likely to reply and let the person know than send the documents back by mail. Facebook is even bet- ter, according to the authors, because a user's recent activ- ity can be an indication that the account is still active. Although he hasn't served anyone by Facebook, Zvulony says he has used the social net- working site to deliver demand letters and track down un- known defendants in prospec- tive actions. For him, Facebook is a much better option than traditional methods of substi- to putting an ad in the newspa- per, it's much better." Zvulony notes he would like to see the Rules of Civil Procedure relaxed to allow elec- tronic service more easily than at present. By the time a lawyer has attempted personal service, drafted an affi davit, and pre- pared a motion for substituted The chances of someone Googling themselves is probably higher than somebody catching a legal notice in the Toronto Star directed to them. tuted service, such as placing an ad in a newspaper. He has also considered creating a web site using the name of a defen- dant with originating docu- ments available for download. "Th e chances of someone Googling themselves is prob- ably higher than somebody catching a legal notice in the Toronto Star directed to them," he says. "It's not a great way of serving someone but compared service by Facebook, the client could already have racked up thousands of dollars in costs. "It's only a last resort and it needs judicial blessing," he says. "We need some reform in the Rules to allow for more effi cient service. Th ere are many ways the lawsuit could come to that person's attention without hav- ing to have a third party go and knock on that person's door at the dinner hour." LT PAGE 5 Ontario Environmental Legislation 2010-2011 NEW IN 2010-2011 Edition Under the Aga Khan lawyer Brian Gray fought the imam's appearance for discovery in Toronto this month. people have turned against the pair. "Th ere are some people who looked at me with an evil eye," Jiwa says. "Some people in the com- munity did not understand what we have been saying. Th ey work on the assumption that we were fi ghting the imam or the community when in fact we are completely not." In Jiwa's opinion, distribu- tion of the Farmans would be good for the entire community because followers have been unable to get copies of the Aga Khan's teachings in recent years. But a recent announce- ment to the worldwide Ismaili congregation, he says, has indi- cated that offi cials in the Aga Khan's offi ce are considering a proposal to compile their own authorized collection of Farmans. "Th at was our whole intent — that the Farmans should be available to the fol- lowers. Th at's exactly why we were doing it, so if it happens, I think the whole community will benefi t." Despite the upheaval the case has brought him, Jiwa has no regrets about the way it has panned out. "I would have preferred we had the meeting without the court order," he says. "It would have been better if it had come earlier without conditions, but things, I guess, had to happen as they did and we are all satisfi ed." LT www.lawtimesnews.com ORDER your copy today Perfectbound • Vol. 1 - 1,196 pp. Vol. 2 - 1,176 pp. • October 2010 On subscription $91 • P/C 0800140000 One time purchase $101 P/C 08000100000 Multiple copy discounts available ISSN 1195-163X • O. 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