2.29: Withdrawal of lawyer of record
11.22: Recorded mail service
11.26: Methods of service outside Alberta
11.27: Validating service

Case Summary

The Plaintiff was subject to an Order requiring her to seek leave from the Court to continue three Actions due to her prior participation in frivolous and vexatious litigation alongside her father. The Order required the Plaintiff to seek such leave within six months, failing which the Defendants were permitted to apply to strike out the Plaintiff’s claims. The Plaintiff did not seek leave to continue the Actions, and this Decision dealt with the validity of service by the Defendants of their joint Application to strike the Plaintiff’s Claims.

The Plaintiff had originally been represented by counsel in these Actions. The Plaintiff’s counsel withdrew from the record in accordance with Rule 2.29, and in doing so provided a last known residential address for the Plaintiff in South Carolina, as well as the Plaintiff’s email address.

In considering whether the Plaintiff was properly served with the present Application, the Court noted Rule 11.22, which permits service of a non-commencement document by recorded mail, addressed to the party at the address for service provided in the most recently filed document in the Action. Rule 11.22 deems service effective on the earlier of the date on which receipt is acknowledged, or seven days after the recorded mail is sent (regardless of an acknowledgement).

The Defendants sent a copy of the Application materials to the South Carolina address by recorded mail; the package was not able to be delivered to the Plaintiff, nor was it picked up pursuant to the instructions which were left at the South Carolina address.

The Court first dealt with the issue of whether service under the Hague Convention on Service was required. Citing Rule 11.26, Justice Eamon held that it was not, since the Application was not a commencement document.

Next, the Court considered whether the South Carolina address was the appropriate address at which to serve the Plaintiff. Justice Eamon found that the Defendants were entitled to rely on the address listed on the Notice of Withdrawal in accordance with the obligations of counsel under Rule 2.29. This conclusion was not affected by the subsequent filing of documents by the Plaintiff’s father, which documents were later struck as amounting to an abuse of process.

Lastly, Justice Eamon considered whether service was defeated because the package was never picked up. Justice Eamon held that, pursuant to Rule 11.2, service by recorded mail is not invalid only by reason that the addressee refuses to accept the mail or no longer resides or is otherwise not present at the address. The Court emphasized the importance of the ability for litigants to rely on the address for service that is given and the methods for service under the Rules. The Court therefore concluded that service was effective under Rule 11.22 and should be deemed good and sufficient under Rule 11.27.

In the result, Justice Eamon struck the Plaintiff’s claims as being an abuse of process further to the earlier Order of the Court.

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