The Defendant was involved in a motor vehicle accident in 2004 which resulted in the death of Sanderson, whose Estate commenced two separate Actions. The Statements of Claim in the two Actions were issued in May of 2006. The Defendant was Noted in Default on the basis of an erroneous Affidavit of a process server who swore that he had served the Defendant with both Statements of Claim. After the Statements of Claim expired, it was determined that someone else had actually been served, not the Defendant. The Defendant brought an Application to set aside the Noting in Default and strike the Statements of Claim against him, or alternatively, to grant him leave and extend time to permit him to file Statements of Defence.

Justice Read considered the following Rule-related issues:

(a)    Which Rules of Court applied, those in effect when the Defendant was Noted in Default, or those in effect at the time of the Application?

(b)   Should the Noting of Default be set aside?

(c)    If yes, did the Court have discretion to renew the Statements of Claim? If so, should the Court exercise its discretion in this case?

Justice Read referred to Rule 15.2(1), which directs that unless an enactment or another Rule provides otherwise, the Rules apply to every existing proceeding. Rule 15.1(a) defines an “existing proceeding” as “a Court proceeding commenced but not concluded under the former Rules”. The Court confirmed that an expired Statement of Claim does not become a nullity; it is simply not in force: Shah v Christiansen (1992), 5 Alta LR (3d) 174 (CA).An expired Statement of Claim is “renewable”, but this must be done through an Application: Nixon v Timms, 2012 ABQB 315.

Where there is a flaw in the procedure leading up to a Default Judgment, a Defendant, proceeding promptly, is entitled to open up the Default Judgment as of right: Anstar Enterprises Ltd v Transamerica Life Canada, 2009 ABCA 196. In the circumstances of this case, Justice Read set aside the Noting in Default because the Rules were not strictly complied with in serving the Defendant with the Statements of Claim.

In determining whether the Court had the discretion to renew the Statement of Claim, Rules 3.26 and 3.27 were examined. Rule 3.26(1) provides that a Statement of Claim must be served on the Defendant within one year after the date the Claim is filed. Rule 3.27(1)(c) states that the Court may grant an extension of time for service of a Statement of Claim if a special or extraordinary circumstance exists resulting solely from the conduct of a person who is not a party to the Action.

The Court concluded that the process server was not a party to the Action. The remaining question to be determined was whether the Defendant’s situation constituted a “special or extraordinary circumstance”. The Court referred to the facts of Nixon where a process server lied in his Affidavit that service of a Statement of Claim had been effected. The Court in Nixon considered the fraudulent Affidavit to be an “extraordinary circumstance”. Justice Read distinguished Nixon, on the basis that the process server in this case swore a mistaken or false Affidavit, not a fraudulent one. Nevertheless, Justice Read found that the mistaken Affidavit sworn by the process server constituted a “special” circumstance contemplated by Rule 3.27(1)(c).

The Court exercised its discretion to permit an extension of time for service of the Statement of Claim for a period of 30 days, and the Defendant was given a further 30 days to file a Statement of Defence.