3.68: Court options to deal with significant deficiencies
6.12: If person does not get notice of application
6.3: Applications generally
7.3: Summary Judgment (Application and decision)

Case Summary

The Defendants applied to strike the claim against a corporate Defendant pursuant to Rule 3.68 and alternatively, to summarily dismiss the claim against that Defendant on the basis that the corporate Defendant had been struck by the corporate registry, remained struck, and the limitation period to claim against it had expired. The Plaintiffs/Respondents cross applied for a declaration that service of the Statement of Claim on the struck corporation’s sole former shareholder and director constituted valid service on the corporation. The Plaintiffs also cross applied to have the corporation revived under section 210 of the Business Corporations Act, RSA 2000 c B-9 (“ABCA”).

The Defendants contended that the Plaintiffs’ Cross Application to revive the corporation did not comply with the requirements of section 210 of the ABCA, and therefore, should be dismissed. Master Robertson adjourned the revival Application pursuant to Rule 6.12(b) to allow the registrar to be properly notified and to respond formally to the Application.

The Plaintiffs asserted an alternative Application that the Statement of Claim could be amended to allow the struck corporation to be added as a Defendant to the Action, as if it were not named as a Defendant in the first place, pursuant to section 6(4) of the Limitations Act, RSA 2000, c L-12 (the “Limitations Act”). The Defendants objected to this alternative Application and argued that the Plaintiffs did not specify it was making its Application pursuant to section 6 of the Limitations Act, and therefore, did not comply with Rule 6.3(2)(d) which requires a pleading to “refer to any provision of an enactment or rule relied on” unless the Court permits otherwise. Master Robertson noted that Rule 6.3(2)(d) requires reference to the specific provision of an enactment that the Applicant is relying on, not just the enactment itself. Master Robertson commented that the purpose of the Rule is to demonstrate that “the applicant knows why it believes that [it] is entitled to the relief, and to give the respondent an understanding of the case it has to meet”. Master Robertson noted that violations of Rule 6.3(2)(d) are “frequent, and it is troubling”, but determined that he did not need to address this objection substantively, as he did not make an Order under section 6 of the Limitations Act.

Master Robertson held that section 227 of the ABCA specifically allowed for corporations to be served with a Statement of Claim after they had been struck, and that this provision did not require the corporation to be revived by the Plaintiff prior to service. Accordingly, Master Robertson declared that service on the sole former shareholder and director was valid service on the corporation, and dismissed the Defendants’ Applications under Rule 3.68 and 7.3.

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