The Defendant brought an Application seeking an Order pursuant to Rule 11.31 setting aside service of the Plaintiffs’ Statement of Claim, as well as a direction that the Court lacked jurisdiction to entertain the Action. The Plaintiff had filed a Statement of Claim seeking damages against Dr. Miller, a radiologist in Ontario who failed to diagnose the Plaintiff’s malignant brain tumour. The Plaintiff filed an Amended Statement of Claim that asserted grounds for service outside of Alberta, namely that her claim was governed by the law of Alberta and related to a tort committed in Alberta.

The sole issue before Justice Sullivan was whether the Action should be allowed to proceed in Alberta. The relevant question was whether the requirements for service ex juris under the Alberta Rules of Court were met. Rule 11.25 governs the service of commencement documents ex juris. A commencement document may be served outside Alberta but within Canada only if (a) a real and substantial connection exists between Alberta and the facts on which a claim on the action is based, and (b) a commencement document discloses the facts in support and specifically refers to the grounds for service of the document outside Alberta and in Canada. Pursuant to Rule 11.25(3)(c) and (d) other instances where a real and substantial connection are presumed to exist include where the claim is governed by the law of Alberta, or relates to a tort committed in Alberta.

The Plaintiffs failed to establish an arguable case that their cause of action was sufficiently connected to Alberta for the Court to assume jurisdiction. Accordingly, the Court lacked jurisdiction to entertain the Plaintiffs’ Action, and Justice Sullivan set aside the service ex juris of the Statement of Claim pursuant to Rule 11.31(1)(a).