FRANSSEN v THULE TOWING SYSTEMS LLC, 2012 ABQB 657
3.26: Time for service of statement of claim
3.28: Effect of not serving statement of claim in time
9.15: Setting aside, varying and discharging judgments and orders
13.18: Types of affidavit
The Plaintiffs filed a Statement of Claim on December 29, 2011. On December 6, 2012, an Order was granted by Master Breitkreuz granting the Plaintiffs an extension until March 6, 2012 to serve the Statement of Claim, and also to serve, ex-juris, a copy of the Statement of Claim on the Defendant located in the United States of America (the “US Defendant”). The US Defendant was not served with a copy of the Statement of Claim until July 3, 2012, and applied to have the Order of Master Breitkreuz set aside and a Declaration that no further steps could be taken against any of the Defendants.
The US Defendant argued that the Plaintiffs’ Affidavit in support of their December 6, 2011 Application (“Affidavit”) should be struck out on the basis that the deponent did not have personal knowledge of the facts and did not disclose the source of her information and belief. Master Laycock agreed with the US Defendant and struck out the bulk of the Affidavit because sections of the Affidavit:
1. Repeated allegations found in the Statement of Claim and did not provide any factual evidence to the Court;
2. Failed to provide a source of information and belief; or
3. Consisted of legal opinion or conclusion.
Master Laycock then applied the test for extending the time for service of a Statement of Claim pursuant to Rule 3.26, and considered case law regarding former Rule 11(6). Master Laycock disagreed with the Plaintiffs’ argument that an Order to extend time for service can be made without any Affidavit evidence, and further stated that any Rule that does not explicitly mention the need for an Affidavit still requires Affidavit evidence to be considered by the Court. Master Laycock found that there were no material facts contained in the Affidavit and there was no evidence upon which the Court could rely. As a result, Master Laycock struck out the provision of Master Breitkreuz’s Order extending time for service of the Statement of Claim, and declared that no further steps could be taken against the US Defendant.View CanLII Details