The Defendant/Applicant brought an Appeal to set aside the Order of a Chambers Justice which had extended the time for the Plaintiff/Respondent to serve a Statement of Claim by three months, under Rule 3.26. The Plaintiff/Respondent had failed to serve the Defendant/Applicant within one year of filing the Statement of Claim.

The Plaintiff/Respondent operated a seniors’ lodge which the Defendant/Applicant provided security services at. On December 15, 2015, a fire occurred during the construction of the premises. On December 14, 2017, the Plaintiff/Respondent filed a Statement of Claim, listing 9 Defendants including the Defendant/Applicant. On December 14, 2018, the Plaintiff/Respondent applied for an extension of time for service under Rule 3.26. In support of this Application, the paralegal for the Plaintiff/Respondent’s counsel swore an Affidavit which contained little helpful evidence. The Master granted an extension of three months for service.

The Defendant/Applicant appealed the Decision of the Master, claiming that they were prejudiced because they had destroyed relevant records after 3 years had passed from the date of the fire. In support of the Appeal, the Defendant/Applicant had submitted a new Affidavit containing additional evidence pursuant to Rule 6.14. On appeal of the Master’s Decision, the Chambers Justice determined that the destroyed records were not evidence and therefore, while there may be prejudice, it could be dealt with at a Trial of the Action. The Chambers Justice upheld the Decision of the Master.

The Defendant/Applicant then appealed the Chambers Justice’s Decision to the Court of Appeal. In determining whether the Decision of the Chambers Justice should be set aside, the Alberta Court of Appeal considered Rule 3.26 and determined that, while there may well be prejudice to the Defendant/Applicant, the Chambers Justice had properly balanced the competing interests at play in upholding the extension of time for service of the Statement of Claim.

The Court of Appeal also noted that the Chambers Justice erred in determining that the records were not evidence, as they could be admissible under a common law exception to the hearsay rule.