berger, mcdonald and brown JJA

3.27: Extension of time for service

Case Summary

The Plaintiff served a Statement of Claim related to a motor vehicle accident on the Defendant’s insurance adjuster, but failed to serve it on the Defendant within the one year expiration period. The Master granted an extension of time to serve the Statement of Claim pursuant to Rule 3.27(1)(c). The Master’s Order was overturned by a Chambers Judge on Appeal. The Plaintiff then appealed to the Court of Appeal.

The Court of Appeal acknowledged that Rule 3.27(1)(c) requires a two-step process. First, special or extraordinary circumstances must exist as a result of the Defendant’s conduct or from the conduct of a third party. The special or extraordinary circumstances must be connected to the lack of service. Second, the Court must consider if it is appropriate to exercise its discretion to extend time for service, giving consideration to limitations legislation and prejudice to the innocent party. The Court concluded that Rule 3.27 should not be used to extend periods for service where the failure to serve is caused by Plaintiff’s inadvertence, even where no prejudice to the Defendant is demonstrated. The Court also found that no special or extraordinary circumstances existed in this case. The Appeal was dismissed.

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