NIXON v TIMMS, 2013 ABCA 84
PAPERNY, WATSON AND BELZIL JJA
3.27: Extension of time for service
The Statement of Claim, which sought recovery with respect to a failed real estate transaction, was filed on February 23, 2007. A process server swore an Affidavit that he had effected personal service on the Defendant on December 20, 2007. On the basis of that Affidavit, the Defendant was Noted in Default and Judgment was entered. The Defendant received notice of the Judgment in May, 2011 and applied to set it aside. The Trial Judge held that the Statement of Claim had not been served because the Affidavit of Service had been sworn fraudulently and was untrue. The Trial Judge set aside the Default Judgment, but declined to strike the Statement of Claim or find that it had expired. Rather, the Trial Judge ordered the Defendant to file a Statement of Defence within 20 days. The Defendant appealed the Trial Judge’s Decision on this point.
The Court of Appeal held that Rule 3.27 was not capable of reviving a Claim that had expired under Rule 11 of the former Rules of Court. Former Rule 11 provided that a Statement of Claim was in force for 12 months after filing. Pursuant to former Rule 11, the subject claim would have expired on February 23, 2008. The Statement of Claim was never properly served on the Defendant, no renewal was sought while it was in force, and the claim could not be renewed under any other provision of Rule 11. The Court held that upon the expiration of a Statement of Claim, the Plaintiff was barred from taking any further action on it. The new Rules could not retroactively revive an Action that expired in 2008.
The Court held that if a claim could be renewed at any time after expiration, the Courts would have limitless discretion to restore a Claim. The drafters of Rule 3.27 did not intend to create such discretion or the perpetual ability to renew expired Claims. The Court allowed the Appeal and held that the Statement of Claim expired in February 2008, and that no further action could be taken under it.View CanLII Details