A lawsuit against Harvey Weinstein alleging the Hollywood mogul sexually assaulted an Ontario actress nearly two decades ago is being allowed to proceed even though lawyers have not been able to track him down.
A Toronto court gave the woman’s lawyers permission to file a statement of claim despite their failure to serve Weinstein and his former assistant, who is also named as a defendant, with legal documents.
Alex Smith, who represents the actress, says they tried and failed to serve Weinstein at his home in Westport, Conn., and believe he could also be in Phoenix, Ariz., or somewhere in Europe.
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“His whereabouts are unknown,” he said.
Smith says they also repeatedly tried to serve Weinstein’s former assistant at her office and through her lawyer but have not succeeded so far.
In a statement of claim, the actress, who cannot be named as she is seeking a publication ban on her identity, alleges she was sexually assaulted by Weinstein while she had a part in a movie being filmed in and around Toronto.
None of the allegations have been proven in court and no statements of defence have been filed.
READ MORE: Toronto actress suing Harvey Weinstein for sexual assault
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The court issued an order Monday for substituted service, meaning lawyers can take other means to serve the defendants with the lawsuit instead of doing so in person.
“When you start a lawsuit, with a statement of claim the first originating document, it has to be served personally, that’s the rule, meaning it has to be put in that person’s hand,” said Erik Knutsen, a law professor at Queen’s University.
“If for some reason you have difficulty with that, or it’s impossible, the rules of civil procedure in those special circumstances allow lawyers or parties to ask the court to grant what’s called substituted service but before you even get there you have to also prove that alternatives to something other than personal service don’t work,” he said.
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Some alternative methods include sending it by mail or giving it to the person’s lawyer, he said.
Substituted service allows lawyers to print a notice in the newspaper or serve someone else, such as a spouse, if that makes it likely the targeted person will see it, Knutsen said.
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“The overarching reason behind all of this is, suing someone in civil court is a really important thing and so we want to make sure that as best as reasonably possible, that really important document gets in the hands of that person and not lost or something,” he said.
The actress is seeking millions of dollars in damages, claiming she has suffered mental distress, extreme social anxiety and depression, as well as social isolation and feelings of guilt, worthlessness and shame as a result of what happened.
The civil case will return to court on Dec. 1. The woman’s lawyers will eventually be seeking to move ahead with the claim without using her name, arguing that identifying her would cause irreparable harm to her mental health and well-being. An affidavit filed in court said she may not continue with the case if she must use her name.
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Smith said the woman is starting to see a therapist who will provide evidence on the effect it would have on the actress if she were publicly identified.
The woman’s allegations come as Weinstein, an Oscar-winning film mogul, faces a slew of sexual harassment allegations from several women.
He was fired from his namesake company on Oct. 8, days after reports of sexual harassment by him ran in the New York Times.
Weinstein’s representative Sallie Hofmeister has said Weinstein denies all allegations of non-consensual sex.
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