The Defendant, Ms. Ursuliak, applied under Rule 9.15(3) to set aside a Noting in Default on September 16, 2024.

Counsel focussed their submissions on whether there was a flaw in service which would disentitle the Plaintiff to its Noting in Default. Counsel for the Defendant acknowledged that service was effected on September 11, 2024 when she specifically acknowledged service pursuant to Rule 11.16. However, there was disagreement as to whether service was effected on August 20, 2024, when the Defendant’s lawyer responded by email that she had “instructions to accept the Amended Statement of Claim”. Counsel for the Defendant argued there was a difference between accepting service and confirming that she had instructions to accept Service.

Rule 11.16(2) provides that “Service is effected under this rule on the date service of the commencement document is accepted in writing by the lawyer.” Relying on Toronto Dominion Bank v Halliday, 2022 ABKB 764, Justice Little confirmed that a written acknowledgement or acceptance of service must be from the Defendant and not an agent of the Defendant. That distinction, however, cannot be relied upon by a lawyer. In the case at hand, counsel for the Defendant confirmed on August 20, 2024 that she had instructions to accept service. That amounts to an acceptance of an email communication by a lawyer. The Court found that counsel for the Defendant, and therefore the Defendant, was properly served on August 20, 2024. That was sufficient to validate the Noting in Default.

Turning to Rule 9.15(3)(a), the Court noted that this Rule is discretionary and permits the Court, on terms it considers just, to permit a Statement of Defence to be filed by a party who has been Noted in Default. The Court applied the test from David M. Gottlieb Professional Corporation v Nahal, 2011 ABQB 355, to decide whether to set aside the Noting in Default, focusing on whether there was a meritorious defence. The Court found a triable issue based on the Defendant's Affidavit, which presented a factual dispute regarding the condition and handling of property. The Defendant was therefore permitted to file a Statement of Defence.