The Plaintiff, Donald Padget, was co-executor and co-trustee of his father’s estate along with his brother, the Defendant, Stewart Padget (“Stewart”). The Plaintiff filed a Statement of Claim on May 17, 2013 claiming that Stewart, along with Stewart’s former wife, had wrongfully taken money before the death of their father. The Plaintiff failed to serve the Statement of Claim within the one-year limitation period. The Plaintiff made an Application in Masters’ Chambers to extend the time period for service, which Application was granted. The Defendant successfully appealed the extension of time to serve before Justice Greckol.

The Plaintiff brought the present Application before Justice Greckol pursuant to Rule 9.13, requesting that the Appeal Decision be varied because it was incorrectly determined under Rule 3.27, as opposed to Rule 3.26. The thrust of the Plaintiff’s argument in favour of varying the Appeal Decision was that it had been made by erroneously following Rule 3.27. This was incorrect, according to the Plaintiff, because the Application to extend time for service was made within one year of filing the Statement of Claim, and so the applicable Rule was in fact Rule 3.26.

With regard to Rule 9.13, Justice Greckol noted that, if the Applicant had demonstrated the likelihood of error was very high, the Court had the authority under Rule 9.13 to vary the earlier Decision. After reviewing the case law dealing with Rules 3.26 and 3.27, Justice Greckol stated that the weight of authority indicated that Applications for extension brought within a year of filing the Statement of Claim are dealt with under Rule 3.26, and do not engage the considerations applied under Rule 3.27.

Justice Greckol summarized the guiding principles when making a determination under Rule 3.26: (a) there should be some evidence showing attempts to serve; (b) ideally, there should be some explanation for why the Defendant has not been served; (c) the purpose of renewal cannot be to delay; and (d) there should be no prejudice arising to the Defendant.

After reviewing the facts of this case, the Court was satisfied that the Plaintiff had met the requirements for an extension pursuant to the Rule 3.26. Accordingly, the Court stated that there was a “very high likelihood that the Applicant has correctly identified an error” and varied the earlier Appeal Decision pursuant to Rule 9.13.