master schlosser

10.42: Actions within Provincial Court jurisdiction
11.27: Validating service

Case Summary

The Plaintiff applied for Summary Judgment on a Judgment from the Superior Court of Quebec and the Defendant cross-applied for Summary Dismissal. The Action in Alberta originated in Provincial Court, but was transferred to Queen’s Bench.

The Plaintiff and Defendant were embroiled in estate litigation in Texas and Quebec. The Quebec Action was for defamation after the Defendant’s counsel in Texas forwarded Pleadings from the Texas Action to the National Bank of Canada. Notifying the bank about the Action was common practice in Texas, since the Action involved contesting the will of a deceased who had accounts with National Bank. The Texas pleadings contained allegations against the Plaintiff including “‘undue influence’, ‘fraudulent inducement’, ‘tortious interference with inheritance rights’, ‘greed’, and willful, wanton and malicious actions”.

The Quebec Superior Court had validated service of the defamation claim and granted Judgment against the Defendant for $5,000 plus interest. The Defendant contested the importation of the Quebec Judgment into Alberta on the basis that it was contrary to the principles of fundamental justice for the Quebec Superior Court to validate a form of service which failed to provide adequate notice, alleging that the failure to abide by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Convention”) was a fatal defect.

Master Schlosser examined the equivalent Alberta Rules for service, and noted that Rule 11.27(4) allows the Court to accept a method of service despite its non-conformity with the Rules, and despite the fact that the Hague Convention applies to the service of that document. Master Schlosser commented that the purpose of Rule 11.27 is to validate a method of service if the Court is satisfied that the document has been brought to the attention of the person served. Upon review of the Quebec Judgment, Master Schlosser found that the Quebec Court properly validated service after finding that the methods used were sufficient to bring the matter to the attention of the Defendant. Master Schlosser held that Section 138 of the Quebec Code of Civil Procedure was similar to Rule 11.27, and that the Alberta Court would have made a similar Order. Master Schlosser also commented that effecting substitutional service on a lawyer was not a “first choice”, but that “it is sometimes done”. Master Schlosser held that the Defendant had failed to demonstrate that the Quebec Court acted contrary to the principles of natural justice in validating service. The Plaintiff’s Application was granted and the Cross-Application dismissed.

Master Schlosser reduced Costs in accordance with Rule 10.42, which provides that a matter within the jurisdiction of the Provincial Court is to have Costs assessed, if at all, not more than 75% of the amount specified in Column 1 of the tariff in Division 2 of Schedule C.

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