5.12: Penalty for not serving affidavit of records
11.21: Service by electronic method

Case Summary

The Plaintiff brought an Application to compel the production of the Defendant’s Affidavit of Records and seeking penalty Costs for late service of an Affidavit of Records pursuant to Rule 5.12. The Plaintiff had sent his Affidavit of Records via fax to the Defendant’s counsel. Six months later, the Plaintiff brought the Application without any further follow up calls or correspondence requesting the Defendant’s Affidavit of Records. The Defendant provided a legal assistant’s Affidavit advising that there was no record of the Plaintiff’s Affidavit of Record having been received. The Plaintiff asserted that service of his Affidavit of Records triggering the timeline for the Defendant’s Affidavit of Records was established by Rule 11.21 and the presentation of the delivery confirmation printout. The Defendant consented in advance to an Order setting a date for the production of its Affidavit of Records, disposing of that aspect of the Application.

Master Farrington noted that Rule 11.21 requires the document to be received by the recipient “in a form that is usable for subsequent reference” and it was not clear on the evidence whether that had occurred.

Master Farrington noted that Rule 5.12 contains more discretion than its predecessor Rule 190, as it states that the Court “may” impose a penalty if the non-moving party failed to serve an Affidavit of Records without sufficient cause. Master Farrington also noted that establishing sufficient cause for neglect to serve an Affidavit of Records is a high bar, but can be made out by extraordinary circumstances over which the party had no practical control. Lastly, Master Farrington stated that the purpose and intent of Rule 5.12 is to encourage the prompt production of documents, and to penalize a “dilatory defendant that has defaulted in its production obligations”, but that it was not a goal in and of itself, citing the Law Society of Alberta Code of Conduct which discourages parties from attempts to gain advantages based on slips or oversights not going to the merits of the dispute.

Master Farrington found that the penalty in Rule 5.12 was not warranted, and dismissed the Application.

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