REYES v DYCK, 2019 ABQB 667


1.2: Purpose and intention of these rules
3.26: Time for service of statement of claim
3.27: Extension of time for service
11.27: Validating service
13.18: Types of affidavit

Case Summary

The Plaintiff applied for an extension of time to serve a Statement of Claim pursuant to Rule 3.27, notwithstanding that the 1-year period for service under Rule 3.26(1) had already expired. Alternatively, the Plaintiff sought an Order validating service pursuant to Rule 11.27. The Statement of Claim related to injuries resulting from a motor vehicle accident. The Plaintiff had served a courtesy copy of the Statement of Claim on the Defendant’s insurer, and then engaged in negotiations with the insurer, but did not personally serve the Defendant.

Master Schulz reviewed Rule 3.27 and found that the Plaintiff could apply for an extension  pursuant to Rule 3.27(1)(c), which permits an extension of time for serving a Statement of Claim where “special or extraordinary circumstances exist resulting solely from the defendant’s conduct or from the conduct of a person who is not a party to the action”; or pursuant to Rules 3.27(a)(ii) or 3.27(a)(iii), which apply where “liability is or will not be contested”, or where a time period in the Action “will not be relied on or will be waived”.

Master Schulz found that the Plaintiff reasonably believed that liability was not being contested by the insurer. The Master explained that where such a reasonable belief exists, the Court may exercise its discretion to determine whether time for service should be extended. Since there had been no undue delay, and the “goal of timely, cost-effective resolution” set out in Rule 1.2 was being met, Master Schulz exercised his discretion to renew time for service of the Statement of Claim for 3 months, pursuant to Rule 3.27(a)(ii). However, the Master cautioned counsel to communicate clearly to avoid such issues arising.

The Master next considered whether, in the alternative, service could be validated pursuant to Rule 11.27 given that the Plaintiff had served the Defendant’s insurer. Under Rule 11.27(1), service may be validated where the method of service used “brought or was likely to have brought the document to the attention of the person to be served”. Master Schulz noted that the evidence before the Court was located in the Plaintiff’s Affidavit, but much the Affidavit evidence was non-compliant with Rule 13.18 and could not be relied upon because it was based on information, and the Plaintiff did not state that she believed the information to be true. As a result, the Court was not satisfied that the Statement of Claim was brought or was likely to have been brought to the Defendant’s attention, so service could not be validated.

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