ARSENAULT v AUBIN, 2015 ABQB 311
3.27: Extension of time for service
9.15: Setting aside, varying and discharging judgments and orders
11.31: Setting aside service
The Defendant was involved in a car accident in 2006 when he was drunk and driving a stolen truck. After serving a short time in prison, he led the life of a drifter, living on the street. The Plaintiff was the other driver involved in the accident, and sued the Defendant for his property damage. When the Defendant could not be found, the Plaintiff applied for an Order for substitutional service by publishing in the Grande Prairie Daily Herald-Tribune. Some years later, the Defendant re-emerged, looking to make a fresh start. He was surprised to find that there was a Judgment against him. He applied to set aside the substitutional service of the Statement of Claim and the Judgment. Master Schlosser found that it was clear that the Defendant had not received notice of the Claim against him, and accordingly, set aside service of the Statement of Claim pursuant to Rule 11.31(1), and also set aside the Judgment pursuant to Rule 9.15.
The Plaintiff brought a Cross-Application to renew the Statement of Claim pursuant to Rule 3.27(1)(b). Master Schlosser noted that in deciding whether to exercise discretion under this Rule, regard must be had of the policy considerations in the Limitations Act, RSA 2000, c L-12 and any prejudice arising as a result of the expiration of a particular limitation period. Master Schlosser reviewed the applicable case law and listed the five elements that a Court should consider in order to grant an extension of time for service:
1. The Court should only extend the time for service where there is no prejudice to the defendant;
2. The plaintiff bears the onus of proving that the defendant would not be prejudiced by the extension;
3. The defendant has at least an evidentiary obligation to provide some details of prejudice which would flow from an extension of the time for service;
4. The defendant cannot create prejudice by failing to do something that it reasonably could have or ought to have done.
5. The prejudice must have been caused by the delay.
The Court found that all the Defendant could say with respect to prejudice was that he had been deprived of an early opportunity to consider a consumer proposal or a bankruptcy. In the Court’s view, this was not enough. Accordingly, Master Schlosser renewed the Statement of Claim for a period of three months for service.View CanLII Details