Neilson J

3.26: Time for service of statement of claim
6.10: Electronic hearing
11.25: Real and substantial connection
11.31: Setting aside service

Case Summary

This was an Appeal of Master’s Decision to dismiss an Application to set aside service outside of Alberta. The Defendants/Appellants were served with an Amended Statement of Claim in Nova Scotia. The claim was in regards to loans and debts from the purchase of real estate in Mexico where the Defendants/Appellants resided. The Master dismissed the Application to set aside service as there was a presumptive “real and substantial connection” between the Claim and the Province of Alberta, and also allowed the Plaintiffs/Respondents to file an Amended Amended Statement of Claim.

Neilson J. held that deficiencies in a pleading governing service outside Alberta are not fatal and a Plaintiff may still amend its claim as no permission is required to do so under Rule 3.26. The Court confirmed further that Rule 11.25 allows a commencement document to be served outside of Alberta and in Canada if a “real and substantial connection” exists between Alberta and the facts on which a claim in the Action is based. Moreover, the facts in support of the claim must be disclosed in the commencement document and the document must refer to the grounds for service outside of Alberta.

In this case, the claim was clearly served within Canada and Neilson J. found that there was a “real and substantial” connection pursuant to Rule 11.25. The claim related to an Alberta contract; it was governed by Alberta law; and it related to a tort committed in Alberta. These are all factors enumerated under Rule 11.25(3) which give rise to a real and substantial connection.

The Defendants/Appellants argued that Alberta was not the appropriate jurisdiction for the Action regardless of the Court’s ruling regarding service. Neilson J. confirmed an Application to set aside service is not an acknowledgement that the Court has jurisdiction over a matter as this is stipulated in Rule 11.31(2). However, Neilson J. still rejected the Defendants’/Appellants’ argument that the Action should proceed in Mexico. The Defendants/Appellants had failed to show that another jurisdiction was “clearly preferable” as required by the case authorities on forum non conveniens. Any issues regarding applicable law between Mexico and Alberta could be overcome with the appointment of experts, and any inconvenience or expense associated with witnesses being located in Mexico could be overcome by giving testimony by electronic means as is permitted under Rule 6.10.

The Defendants’/Appellants’ Application was dismissed with Costs.

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