11.25: Real and substantial connection
11.27: Validating service
15.2: New rules apply to existing proceedings

Case Summary

The Plaintiffs filed their Statement of Claim in 2004 against a number of Defendants, including various Telus entities. The Plaintiffs’ counsel brought the Statement of Claim to the attention of Telus in 2004 by faxing a copy to the President of the parent Telus Corporation in Vancouver, British Columbia. Telus did not acknowledge service and did not defend. The Plaintiffs took no further steps against Telus or any of the other Defendants in the ensuing ten years. The Plaintiffs then applied for an Order deeming that service via fax was good or, alternatively, extending the time for service of the Statement of Claim on Telus. Telus brought a Cross-Application for a Declaration that the Action had expired as against Telus one year after the Statement of Claim was filed.

Given the substantial presence of Telus in Alberta, Master Prowse was prepared to deem service by fax in British Columbia good under the old Rules of Court. Master Prowse observed that, under the new Rules of Court, the position of the Plaintiffs for a deeming Order was even stronger. Rule 15.2 states that the new Rules apply to “every existing proceeding”. Rule 11.27 states that the Court may make an Order validating service; this Rule applied to the Plaintiffs’ Application to deem service good. In addition, Rule 11.25 allows that an Alberta commencement document may be served within Canada without an Order for Service ex juris where a real and substantial correction exists, and the document contains facts in support of the service outside of Alberta. Master Prowse observed that a deeming Order is discretionary under both the old Rules and the new Rules. Because Master Prowse deemed service good, it was unnecessary to consider whether it was possible or desirable to extend the time for service in the circumstances.

View CanLII Details