SCARLETT v SINCLAIR, 2017 ABQB 582
1.8: Interpretation Act
4.33: Dismissal for long delay
11.15: Service on person providing an address for service
11.20: Service of documents, other than commencement documents, in Alberta
11.22: Recorded mail service
11.31: Setting aside service
11.5: Service on individuals
11.6: Service on trustees and personal representatives
11.7: Service on litigation representatives
The Plaintiff commenced an Action against members of the Edmonton Police Service, including the Chief of Police, on the basis that he was the victim of racial profiling. The Plaintiff filed the Statement of Claim in early June of 2014 and the Defendants filed Statements of Defence on June 19 and 23, 2014. The Statements of Defence were delivered to the Plaintiff’s address for service and signed for on June 26, 2014 by the Plaintiff’s tenant. The Defendants applied to dismiss the Claim for long delay, pursuant to Rule 4.33.
The Plaintiff argued that proper service was not effected as he did not receive the Statements of Defence, and that he was therefore entitled to the full adjuster’s year in Rule 4.33(4). Master Schlosser noted the difference between service of commencement documents and non-commencement documents, specifically that under Rule 11.5(2)(b) service for commencement documents through recorded mail is effected on the date “signed by the individual to whom it is addressed”. However, this language is absent for the service of non-commencement documents. Under Rule 11.22(2)(b), service of non-commencement documents occurs when “acknowledgement of receipt is signed”. If the receipt is not signed, then service is deemed after seven days. Master Schlosser observed that while this interpretation of Rule 11.22(2)(b) is consistent with the Interpretation Act, RSA 2000, c I-8, Rule 1.8 expressly excludes the Interpretation Act from applying to the service Rules.
Master Schlosser noted that both Rules 11.15 and 11.22 are “out of step” with the available methods of recorded mail, given that the underlying principle of service is giving proper notice to the party served. Master Schlosser stated that if an individual is served by recorded mail, the wording of Rule 11.15(2)(b) should be read in. The rationale is that service cannot be deemed effective if someone other than the addressee signed for the recorded mail. Master Schlosser also declined to deem effective service through Rule 11.2, noting that none of the required conditions were present.
Master Schlosser stated that the Court is permitted to set aside service under the circumstances set out in Rule 11.31. Service was set aside as the Plaintiff did not personally receive the Statements of Defence. As such, the Defendants’ Application was dismissed.View CanLII Details