3.26: Time for service of statement of claim
3.27: Extension of time for service
11.27: Validating service

Case Summary

Master Mason provided written reasons following an Application by the Plaintiffs, Galandy et al, to either validate service or extend the time for service of a Statement of Claim. The Plaintiffs attempted to serve the Defendant, Top-Notch Projects Inc. (“Top-Notch”), by registered mail approximately six weeks prior to the expiry of the one-year period for service as set out by Rule 3.26(1). The package containing the Statement of Claim was returned “unclaimed” and no further action was taken to serve Top-Notch until five days past the expiry of the one-year period.

Master Mason summarized Rule 11.27 which allows the Court to validate service if the Court is satisfied that: a method of service other than those specified in the Rules was used and was likely to have brought the document to the attention of the recipient, or the document would have been served on time but for the recipient’s evasion of service. Master Mason ruled that neither of these conditions were met in this case. There was no evidence to suggest that the method of service (unclaimed registered mail) likely brought the Statement of Claim to the attention of Top-Notch. Moreover, there was no evidence that Top-Notch had evaded service. The package was “unclaimed”; it was not “refused”.

In regards to an extension of time for service, the Court reiterated that even though the threshold is low for obtaining a three-month extension for service under Rule 3.26(1), the Rule expressly applies only to Applications filed before the expiry of the one-year time limit. However, the Court noted that Rule 3.27(1)(c) allows the Court to grant an extension “at any time” where special or extraordinary circumstances exist stemming solely from the conduct of the Defendant or a person who is not a party to the Action. Master Mason ruled that these conditions also did not apply in this case. The Applicant sought to rely on Top-Notch’s evasion of service as well as the Applicant’s own reasons for failing to serve on time. Master Mason repeated that there was no evidence of evasion of service on the part of Top-Notch and, in any event, the package was returned with sufficient time to serve by alternative means, even if Top-Notch had evaded service. Moreover, as the Rule is express that the “special circumstances” must be attributable to the Defendant or third party, the Applicant’s personal reasons for the delay were not relevant. The Application was dismissed with Costs.

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