KARAS v MONGEON, 2018 ABQB 149
1.3: General authority of the Court to provide remedies
1.4: Procedural orders
1.5: Rule contravention, non-compliance and irregularities
1.6: Changes to these rules
3.2: How to start an action
3.27: Extension of time for service
4.10: Assistance by the Court
12.16: Starting proceeding under Family Law Act
In a family law Action for unjust enrichment, the Plaintiff, Karas, sought an Order extending time to serve a Statement of Claim. Karas had filed a Statement of Claim seeking unjust enrichment, which was in the correct form but mistakenly not served (the “Statement of Claim”), and two property Claims (the “Claims”) asserting essentially the same rights, filed in form FL-10 (which is intended for Actions commenced under the Family Law Act, SA 2003, c F-4.5) and assigned the same Court Action number as the Statement of Claim. The Claims were served in time, but the Statement of Claim was not.
Justice Yungwirth noted that Rule 3.27 provides the Court with discretion to grant an extension, and that such discretion only arises when the Plaintiff brings themselves within one of the exceptions set out in the Rule. His Lordship held that the Plaintiff’s case did fall within the exception set out under Rule 3.27(1)(a) as the Defendant, Mongeon had caused the Plaintiff’s lawyer to reasonably believe that she had been served because counsel responded to both Claims in an Affidavit, consented to the scheduling of family Chambers to address the Claims, and did not take issue with the fact that the Claims were filed in Form FL-10.
In the alternative, Justice Yungwirth found that the Plaintiff’s Statement of Claim could be corrected pursuant to Rule 3.2(6), which allows for an Action that was started in an incorrect form, to continue in a different form. Pursuant to Rule 12.16, proceedings under the Family Law Act must be started in Form FL-10. However, Karas’ claim was for unjust enrichment, which is not governed by the Family Law Act. Rule 3.2(6) permitted the continuation of the Action which was incorrectly commenced through Claim Form FL-10 by way of Statement of Claim. His Lordship, referring to prior authority, noted that Rule 3.2 and its predecessor was “intended to ensure that “the form of the application is no impediment to the relief applied for””. The Plaintiff’s Application was granted.
Yungwirth J. directed that the Parties schedule a case conference pursuant to Rule 4.10 if they could not settle the Action within 90 days.View CanLII Details