FINK v TRALWARE SYSTEMS INC, 2014 ABQB 512
2.29: Withdrawal of lawyer of record
9.15: Setting aside, varying and discharging judgments and orders
11.15: Service on person providing an address for service
11.21: Service by electronic method
The Plaintiff commenced an Action against the Defendants claiming three years of unpaid wages. Defendants’ counsel filed a Statement of Defence, subsequently withdrew from the record and provided a last known address for the Defendants. The Plaintiff served an Application seeking Summary Judgment against the Defendants at the last known address and sent a copy of the Application by email. The Defendants did not appear at the Application, and Plaintiff was successful. The Defendants appealed the Master’s Decision on the grounds that service of the Application was improper, and there were outstanding triable issues. The Plaintiff argued there was no issue as to service given that Rule 11.15 allows for a non-commencement document to be served at an address for service that was provided by the party for the purpose of service. The Defendant Appellants argued that the provision of an address for service by a withdrawing lawyer is directly contemplated by Rule 2.29(1)(a)(i) which places great responsibility on the withdrawing lawyer to be diligent and to ensure that the address given is the best available address. The last known address provided by the Defendant Appellants’ former lawyer was incorrect.
The Plaintiff also argued that Applications to set aside Judgments or Orders due to improper service pursuant to Rule 9.15 should be heard within 20 days of the party being made aware of, or being served with, the Judgment or Order, unless the Court otherwise orders. Justice Lee extended the time to hear the matter pursuant to Rule 9.15(2). The individual Defendant, who was the sole director of the corporate Defendant, deposed that although he communicated with the Plaintiff’s lawyer via email after his lawyer had ceased to act for him, the corporate Defendant was winding down its business and the email account was checked irregularly. The individual Defendant also deposed that he never authorized service to the email account as contemplated by Rule 11.21. Lee J. held that Rules 11.15 and 11.21 were applicable, and concluded that the Plaintiff conducted himself properly, in accordance with Rule 11.15, by serving the Defendants at the last known address for service, and emailing a copy to the email address that the Defendants had regularly used to correspond with counsel for the Plaintiff. Justice Lee observed that the test with respect to opening up Summary Judgments due to accident or mistake should be similar to Rule 9.15(3) (re: setting aside Default Judgments). In order to open up the Summary Judgment it was necessary to determine whether or not the Defendants had an arguable defence which would require a de novo hearing. Justice Lee directed a separate hearing of that issue on a future date.View CanLII Details