1.2: Purpose and intention of these rules
1.8: Interpretation Act
9.15: Setting aside, varying and discharging judgments and orders
11.2: Service not invalid
11.22: Recorded mail service
11.27: Validating service
11.5: Service on individuals

Case Summary

Al-Ghamdi sued 97 Defendants and purportedly served them by registered mail sent directly to the hospital where the individuals worked. Al-Ghamdi received, but did not respond to correspondence from two law firms, advising him that they were acting for certain Defendants, and requesting an extension of time to defend. When prompted for a response, Al-Ghamdi refused the request for an extension of time. Al-Ghamdi subsequently filed several Affidavits of Service, and required the Clerk to note the Defendants in Default based on the Affidavits of Service. Several of the Affidavits of Service which purported service by registered mail had been refused, or signed for by an individual other than the Defendant who was supposed to have been served. Certain individuals were also supposedly served personally, but the Affidavits were sworn by Al-Ghamdi when he was not the one who served the document. When certain Defendants attempted to file Statements of Defence, they were prevented from doing so because of the Notices of Default.

The Defendants applied to open up the Notices of Default but Al-Ghamdi argued that the Defendants’ Applications to open up the Default should be dismissed for a failure to comply with the timelines for filing and service of Applications set by Case Management. The deadline set for filing and service was January 6, 2017. Al-Ghamdi deposed that he did not receive hard copies with court date stamps until several weeks after this date, despite having received electronic copies (albeit, without date stamps) concurrent with the filing of the materials. Justice Hillier held that this objection was without merit, noting that:

Deadlines set in case management are intended to provide: (1) structure that will govern the parties’ expectations and responsibilities, (2) time to prepare and properly respond and (3) efficient standards for work priorities, all with an objective of facilitating access to timely decisions of the court on substantive matters.

Hillier J. held that Al-Ghamdi had sufficient time to prepare and respond.

Al-Ghamdi also argued that the Applications should be dismissed because they were not brought within 20 days of learning of the Default Notices as required by Rule 9.15(2). Hillier J. observed that Noting in Default is not a Judgment or Order, but rather an administrative notation made by the Clerk of the Court. Thus, the 20 day limit in the Rule did not apply to a Noting in Default. Further, Hillier J. held, even if the Rule applied, the Rule provides the Court with discretion to extend the time limits if it is deemed fair to do so. Regarding the merits of the Application to set aside the Noting in Default, Justice Hillier confirmed that the overriding objective was to “do what is fair”, noting that the relevant considerations under Rule 9.15(3) are for an Applicant to show: an adequate explanation as to why a Statement of Defence was not delivered; whether there was any delay in applying to set aside the Default and, if so, whether there was a satisfactory explanation accounting for that delay; and whether the material discloses a triable issue of fact or law. Justice Hillier noted however, that these considerations were not “essential elements that constitute a fixed test” but rather, examples of the relevant considerations for the Court to take into account in exercising its discretion under Rule 9.15(3).

Al-Ghamdi argued further that commencement documents can be served by recorded mail, and that Rule 11.2 provides that service was not invalid because the addressee refused to accept the mail. Hillier J. held that Rule 11.2 is a general provision, which could not overrule the specific provision in Rule 11.5, which states that service of commencement documents is only effected by registered mail when the party acknowledges receipt. Al-Ghamdi argued further that s. 23 of the Interpretation Act RSA 2000, c I-8 creates a presumption of service if an enactment authorizes a document to be sent by mail. Hillier J. however noted that Rule 1.8(c) states that s. 23 of the Interpretation Act does not apply to service of documents under the Rules. Al-Ghamdi further argued that s. 24 of the Interpretation Act, which is not excluded from application to the Rules, provides that service can be effected where persons other than the addressee signs on the addressee’s behalf. Hillier J. however, noted out that the Rules have their own presumptions regarding service by recorded mail under Rule 11.22, but that Rule expressly excludes commencement documents. Hillier J. therefore held that the generic provisions of the Interpretation Act could not overrule the specific provisions in the Rules. As such, Hillier J. held that service by recorded mail could only be effected by the acknowledgement of receipt by the addressee, and remarked that this conclusion should not be read to effect possible exceptions that may be validated by the Court in an Application under Rule 11.27.

Justice Hillier held that the Defendants had moved quickly to set aside the Noting in Default, given the circumstances, and stated that given the number of professionals, public bodies, and institutions which were impugned in the Action, as well as the arguable points raised in response to the allegations by some of the Defendants, it was not necessary for every Defendant to individually set out a meritorious Defence.

The Applications were allowed, and the Defendants permitted to file Defences.

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