The Appellant, James Kidd (“Mr. Kidd”) appealed a Chambers Judge’s Decision that he had been successfully served with Darrell Osadchuk’s (“Mr. Osadchuk”) claim and an ex parte order before the time for service of the claims had expired (the “Appeal”). In the event Mr. Kidd succeeded, Mr. Osadchuk cross-appealed the Chambers Judge’s Decision that substitutional service on February 18, 2020, and two additional attempts at service on July 10, 2020, were not effective (the “Cross Appeal”).

Mr. Osadchuk filed an Amended Amended Statement of Claim on July 8, 2020, after an Applications Judge extended the deadline for service pursuant to Rule 3.26. On July 8, 2020, the commencement documents were sent to Mr. Kidd’s Atlanta address via Canada Post Expresspost, and were deemed be served on July 9, 2020 pursuant to a Court Order, which was one day before the alleged expiry of the limitation period.

As a preliminary issue, Mr. Osadchuk argued that Mr. Kidd required permission for the Cross Appeal pursuant to Rule 14.5(1)(b) because it was a decision “respecting… time periods or time limits” and this includes time period and limits for service. The Court disagreed, holding that the Cross-Appeal was not of a decision in the nature contemplated by Rule 14.5(1)(b).

The Court noted that Rule 11.25(3) sets out a non-exhaustive list of factors which demonstrate a real and substantial connection. The Court also referred to and explained Rules 11.26, 11.33, 11.34, and 11.35 which support Applications for service ex juris. After canvassing the Rules and the Hague Convention, the panel held that service can be affected in the United States via mail.

Mr. Kidd argued that not only did Mr. Osadchuk have to meet the requirements for service outside the jurisdiction but also had to meet the requirements for substitutional service pursuant to Rule 11.28. The Court disagreed, holding that service by mail under the Convention was an expressly mentioned route of service and substitutional service was not necessary.

The Appellant also argued that the deeming provision in the Application Judge’s Order was a validating Order and, pursuant to Rule 11.27(1), was prohibited where service must be made in accordance with Division 8 of the Rules. The panel disagreed, finding that Rule 11.27 was not relevant to the analysis as the deeming provisions in the July 8, 2020 Order were operative prior to service being effected, not after.

Mr. Kidd further argued that the Applications Judge erred in deeming service to be affected on the date of mailing rather than on the date of receipt. The Court again disagreed, finding the Chamber’s Judge decision was consistent with Rule 11.26(4) which states that service is affected on the date it is effective under the Hague Convention, which contains no provisions on the validity of service. The Hague Convention reinforces that validity of service abroad through postal channels depends on the law of the state of origin, and there was no impediment to an Alberta Court granting a one day following posting Order.

Finally, Mr. Kidd appealed the Chamber Judge’s decision that Ministerial Order 27/2020, which temporarily suspended the period of time where any step was required to be taken in any proceeding for the COVID-19 pandemic, extended the date for service. The Court noted that in O’Chiese First Nation v DLA Piper (Canada) LLP, 2022 ABCA 240 (”O’Chiese”), the Court found that the Ministerial Order was intended to capture a time limit set out in Rule 10.10(2), treating it as a “limitations period”. The Court held the same reasoning in O’Chiese was applicable to the extension that the Chambers Judge granted pursuant to Rules 3.26 and 3.27.

The Appeal was dismissed, and the Court did not determine the Cross Appeal in the result. In closing, the Court commented that the Appellant’s submissions on Costs, included as appendices the written submissions from the Court below, should be avoided without permission from the Case Management Officer pursuant to Rules 14.18(2.1) and 14.27(1)(c).