The Appellant (Defendant) appealed an Order that refused to set aside an ex parte Order granted to the Respondents (Plaintiffs) extending the time for service of an Amended Amended Statement of Claim (“Statement of Claim”) and Substitutional Service on the Appellant.

By way of background, the Respondents (Plaintiffs) filed the Statement of Claim for failure to disclose a leak in the basement of a house prior to its sale, but were unsuccessful in serving the Appellant (Defendant) prior to the required service date. A week before the date of expiry, the Defendant’s counsel contacted the Plaintiffs’ counsel requesting further information. The Statement of Claim was provided during this communication, but service was not accepted. The Respondents (Plaintiffs) successfully applied and received an ex parte Order to extend the limitation period for service of the Statement of Claim. The Appellant applied to set aside the ex parte Order. The Respondents responded by providing fresh Affidavit evidence from the counsel’s assistant. Brown J., in Chambers, declined to set aside the ex parte Order.

The Court noted that the Chambers Judge carefully observed that the permissibility of additional evidence on an Application to set aside an ex parte Order is a matter of discretion (Hansraj v Ao, 2004 ABCA 223). The Court also noted that the Chambers Judge observed Rule 9.15(4), which permits the Court to set aside an interlocutory Order and does not limit the type of evidence the Court may consider during an Application. The Court inferred from Hansraj that in many or most cases:

. . . it is appropriate to treat an application to set aside an ex parte order as a new application for the same order, without any restriction on the type of evidence the party with the benefit of the order may produce in its support.

The Court held that Brown J. had not improperly considered arguments and evidence not tendered at the time of the Application for the initial ex parte Order. The Court also held there were ample reasons to support the Chambers Judge’s Decision that special or extraordinary circumstances existed under Rule 3.27(1)(c).