MAKAR v LUEDEY, 2013 ABQB 189
1.4: Procedural orders
1.5: Rule contravention, non-compliance and irregularities
3.27: Extension of time for service
11.27: Validating service
11.28: Substitutional service
The Plaintiffs filed a Statement of Claim on January 28, 2011, seeking damages for personal injuries arising out of a motor vehicle accident that occurred on February 19, 2009. Plaintiffs’ counsel took a number of steps to attempt to locate the Defendant in order to serve the Statement of Claim, including obtaining an Order to Extend the Time for Service to April 28, 2012 and an Order allowing for Substitutional Service by publication in the Edmonton Sun. Counsel for the Defendant’s insurer was notified of the claim within 9 months of the accident and remained involved. The Defendant herself did not become aware of the claim until June 19, 2012.
The Defendant applied to set aside Substitutional Service. The Court considered: (1) whether there was sufficient evidence to establish that the Substitutional Service Order was sufficient, and if not, whether it should be set aside; and (2) whether the Court should grant an extension of time for service of the Statement of Claim if the Order for Substitutional Service was set aside.
The Plaintiffs had evidence that the Defendant’s vehicle bore Nova Scotia license plates at the time of the accident, and had been advised by the insurer that the Defendant was likely in Nova Scotia. The Court found that as the Plaintiffs’ best information was that the Defendant had returned to Nova Scotia, publication in the Edmonton Sun was not likely to be effective service, and it set aside the Order allowing for it.
In applying for an extension of time to serve the Statement of Claim, the Plaintiffs argued that the Court had inherent jurisdiction to waive irregularities, as well as specific authority under Rules 1.5 and 11.27 to cure a contravention of the Rules. The Court noted that courts “will generally take steps to cure a procedural defect as long as it does not cause substantial prejudice to the other party”. It held that the test has been codified in Rule 1.4(4)(a) and made even broader the requirement that the steps taken to cure the irregularity must not cause “irreparable harm to any party”. However, the Court noted that Rule 1.5 did not apply because Rule 3.27 specifically addressed the issue in question.
The Court found that there was no prejudice to the Defendant. The Plaintiffs had proven that the insurer had early notice, only 52 days had passed since the renewal period expired, the Plaintiffs made every reasonable effort to locate the Defendant and there was no evidence of prejudice. In the result, the Court granted relief under Rule 3.27.View CanLII Details