An out-of-country Defendant applied to set aside Orders for Service Ex Juris. The Application was filed when the former Rules were still in force, but was made after the new Rules became effective.

At the heart of the Application was whether the “good arguable case” standard of proof requirement for Service Ex Juris under the former Rules was carried forward by the new Rules. The Court indicated that it was keenly aware of its obligation to prevent difficulty or injustice to either party stemming from the transition to the new Rules. Wittmann, CJQB noted that if applying the new Rules would benefit one party to the detriment of another, the difficulty or injustice referred to in Rule 15.6 had to be resolved. His Lordship pointed out, however, that if the requirement of a “good arguable case” continued and persisted under the new Rules, it would be unnecessary to determine which set of Rules applied.

The Court, in referring to Rules 1.4 and 1.7, and relying on case-law under the former Rules (including Nova v Grove Estate, 1982 ABCA 279 and Vikpovice Horni a Hunti Tezirstro v Korner, [1951] AC 869), determined that the standard of proof continues to be a “good arguable case” under the new Rules. Wittmann, CJQB defined “good arguable case” as that which is not fanciful or speculative but is grounded upon some evidence upon which an objective trier would say: “well, on the basis of the facts presented, the case is arguable and certainly is not to be dismissed out of hand”. His Lordship had the following to say with respect to the suggestion by the Respondent that the “good arguable case” requirement no longer applied to the new Rules (paragraphs 39 and 40):

For this court to do away with the good arguable case criterion and have no standard whatsoever, which is what [the Respondent] asserts, would in my view require that under the [new Rules] there should be express or implied a provision that a "good arguable case" is not required to be made out to support valid service outside of Canada pursuant to Rule 11.25(2). It is common ground that there is no express exclusion of the requirement in the [new Rules]. Nor is anything to be implied from the [new Rules] which would do away with this requirement.

Logic and common sense dictate some standard of proof in addition to mere allegations in a statement of claim in order to support service of an originating document outside of the jurisdiction. … Thus, to resolve the issue in this case, namely whether the ex-juris orders ought to be set aside, I continue the requirement of a good arguable case, which requires some evidence. …

Chief Justice Wittmann also indicated that the requirement of a “good arguable case” is subsumed within the wording of Rule 11.25, namely, that the commencement document is "accompanied with a document that sets out the grounds for service of the document outside Canada, or ... the Court, on application supported by an affidavit satisfactory to the Court, permits service outside Canada”.

The Court found that there was insufficient evidence presented by the Respondent to meet the threshold for a “good and arguable case” as against the foreign Defendant.  As a result, the Orders for Service Ex Juris were set aside pursuant to Rule 11.31.