1.2: Purpose and intention of these rules
3.45: Form of third party claim
11.27: Validating service
13.5: Variation of time periods

Case Summary

The Applicant (“Battistella”), Defendant to a multi-party construction deficiency claim involving water damage to a condominium development project, was required to file and serve any Third Party Claims within six months of filing its Statement of Defence in compliance with Rule 3.45. Battistella failed to serve all Third Party Defendants, including the Respondent, Graham Edmunds (“Edmunds”). Five years later, Battistella sought an Order to perfect service, either by extending the time for service, or by deeming service good and sufficient.

The Court stated that the language in Rule 3.45 is mandatory and requires the Third Party Notice to be filed and served within six months of filing the Statement of Defence. Defective service may be validated in certain circumstances in accordance with the discretionary mechanisms set out in Rules 11.27 and 13.5.

Pursuant to Rule 11.27, service may be validated if a “method of service” has been utilized giving notice to the party to be served, and “failure to advance a reasonable excuse for the delay” will be fatal. The object of service is important. A defective service can be “good and sufficient” if the intended recipient received “knowledge of the general nature of the claim being pressed against him”. There was no evidence that Edmunds had knowledge of the nature of the Third Party Claim against it. Madam Justice Erb stated that the test in an Application to extend the time for service is whether there has been inordinate delay, whether there is credible or reasonable excuse for the delay, and whether there is prejudice. Justice Erb concluded that long delays elevate the importance of a credible excuse. If the delay is not justified, the prejudice is presumed and may not need to be proven. In this case, service on Edmunds was simply overlooked, and a “leisurely” pace of litigation is not an acceptable excuse. There was also no evidence supporting an “air of reality” of the Third Party Claim.

Madam Justice Erb concluded that, pursuant to the purpose of the Rules as set out in Rule 1.2, the process of the Court must be respected. Although some Rules are flexible, the Court was not satisfied that there was no inordinate delay, and that there was a credible or reasonable excuse for the delay. Although the prejudice to Edmunds was not particularized, given the purposes and intention of the Rules, prejudice was apparent. Battistella did not show respect for the process. The Application was dismissed.

View CanLII Details