Pursuant to Rule 3.26, the Respondent applied ex parte for an Order allowing Substitutional Service of their Statement of Claim. In the result, they obtained an Order allowing for Substitutional Service and extending the time to serve their Statement of Claim. The Appellants brought an Application, pursuant to Rule 9.15, to have both the Order and service of the Statement of Claim set aside. This was first brought before the same Applications Judge who granted the Order, but was dismissed. The Appellants then appealed that decision to a Justice of the Court of King’s Bench.

The Appellants argued that the Respondents had only applied for an Order for Substitutional Service. As such, the Applications Judge did not have jurisdiction to grant an Order extending time for service on its own motion. Further, the Appellants argued that Rule 1.4 did not give the Applications Judge jurisdiction to grant an Order extending time for service after the time to serve the Statement of Claim, pursuant to Rule 3.26, had expired. The Respondent argued that its Application was filed before the one-year limit for service had expired, and that Rule 1.4 gave the Applications Judge jurisdiction to grant an Order extending service in replacement of an Order for Substitutional Service.

Justice Leonard agreed with the Appellants and concluded that the Court should not have acted on its own motion. The Court was also not satisfied that the circumstances before the Applications Judge were exceptional enough to warrant intervention. Further, the Court found that Rule 1.4 did not give the Applications Judge jurisdiction to grant an Order extending service. After determining that the Application was not filed within the one-year limit for service, and following previous case law, the Court held that Rules 3.26, 3.27, and 13.5 provide a complete code regarding the circumstances in which the time to serve a Statement of Claim can be extended. Because the Rules specifically address the time within which a Statement of Claim must be served, Rules 1.4(1) and 1.4(2) are not applicable and cannot be used as a basis to extend the time to serve a Statement of Claim.

The Court stated, further, that the materials filed by the Respondent in support of its Application for Substitutional Service were insufficient to support an Application to extend the time for service in any event, as the materials were misleading, and did not comply with the requirements contained in the case law.

Accordingly, the Court allowed the Appeal and set aside the Order and service of the Statement of Claim, as it had not occurred within the required time limit.