BRACE v MCKEN, 2019 ABCA 135

Rowbotham, Veldhuis and Hughes JJA

1.8: Interpretation Act
4.33: Dismissal for long delay
11.20: Service of documents, other than commencement documents, in Alberta
11.2: Service not invalid
11.22: Recorded mail service
11.28: Substitutional service
11.30: Proving service of documents

Case Summary

The Appellant/Defendant applied under Rule 4.33 to have the Plaintiff’s Action dismissed due to long delay. The Appellant filed its Statement of Defence on December 12, 2014, and copies of the Statement of Defence were sent to the Plaintiff’s address for service on the Statement of Claim by regular mail, registered mail, and express post the same day. The Appellant filed an Affidavit of service by a legal assistant setting out the methods of delivery of the Statement of Defence which were attempted, and that the registered mail was returned as “unclaimed” and the express post was returned as “refused”.  The Appellant applied under Rule 4.33 on January 29, 2018. The Respondent/Plaintiff asserted that he did not receive the Statement of Defence until mid-April, 2015 when he had returned to Alberta from Newfoundland, such that 3 years had not elapsed without a significant advance and that in any event, settlement offers had been made which significantly advanced the Action.

The Application was brought before a Master who granted the Application in the Respondent’s absence after being satisfied that service was in order. The Respondent appealed and a Justice granted the Appeal, finding that the Application was not properly served, declining to deal with the merits of the Application. The Appellant appealed and asked the Court to deal with the merits of the Application.

The Court of Appeal noted that the Rules do not provide for any mechanism for service to be affected by regular mail apart from an Order for Substitutional Service under Rule 11.28. The Panel also noted that the presumption of service by regular mail in section 23 of the Interpretation Act, RSA 2000, c I-8 was specifically excluded by Rule 1.8(c).

The Court of Appeal noted that service can be affected by “recorded mail” under Rules 11.20 and 11.22, where “recorded mail” is a form of document delivery “in which receipt of the document must be acknowledged in writing”. The Court of Appeal found that both the registered mail and express post constituted forms of “recorded mail” under the Rules.

Rule 11.22(2) deems service 7 days after the recorded mail is sent, regardless of whether receipt is acknowledged, and Rule 11.2(c) and (d) provides that service is not invalid by reason only that the addressee refuses to take delivery of recorded mail or is otherwise not present at the address for service and has not provided a current mailing address. The Court of Appeal thus held that the Statement of Defence had been properly served under the Rules on December 19, 2014, 7 days after it was sent by recorded mail, and that this service was properly proved under Rule 11.30 through the Affidavit of Service of a legal assistant which described the means of service.

The Court of Appeal assessed the circumstances of the offers to settle to assess whether they had significantly advanced the Action, and found that they had not done so, as they were mere monetary offers which did not narrow the issues, complete discovery of documents or information, or clarify the parties’ positions. A letter sent by the Respondent demanding resolution of the matter and threatening to report the Appellant to the Law Society was similarly found to not have significantly advanced the Action for the same reason.

The Appeal was allowed, and the Action was dismissed under Rule 4.33.

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