Macleod J

3.26: Time for service of statement of claim
3.27: Extension of time for service
3.28: Effect of not serving statement of claim in time

Case Summary

The Appellant, Ms. Stremich, was an unrepresented litigant who filed a Claim alleging professional negligence against her former lawyer and law firm. She hired a process server, who attended at the law firm to serve the Claim four days before time for service was set to expire under Rule 3.26. Service was unsuccessful due to a miscommunication, so the process server returned 10 days later and personally served the respondent lawyer. Master Robertson dismissed the Statement of Claim pursuant to Rule 3.26 because the Respondent lawyer was not served within the one year service period set out in Rule 3.26. Ms. Stremich appealed to a Justice of the Court of Queen’s Bench, seeking an extension.

Justice Macleod held that Rule 3.26(1)(c) applied in this case to allow the Court to grant an extension of time for service. Justice Macleod noted that there is a two part test for analyzing Rule 3.27(1)(c): first, special or extraordinary circumstances must exist regarding the lack of service. The special circumstances must be the result of conduct by the Defendant or a person who is not a party to the Action, and not the Plaintiff. Second, the Court must consider whether or not it is appropriate to extend time for service in the circumstances. In the second branch of the test, the Court should consider the policy relating to limitations periods, as well as prejudice to the Defendant as a result of the time extension.

Justice Macleod considered whether an extension for time of service would prejudice the Defendant. The considerations include (a) whether or not an extension would prejudice the defendant, whether the (b) plaintiff or (c) defendant can prove or disprove such prejudice, (d) whether the defendant failed to do something it ought to have done, and (e) whether or not the prejudice was actually caused by the delay. His Lordship held that, although the process server was an agent for Ms. Stremich, he was still not a party to the Action. Justice Macleod observed that the process server’s conduct was “careless, if not negligent”. Since Ms. Stremich was reliant on the process server to reasonably perform his job, his carelessness constituted a special circumstance. Justice Macleod also found that an extension of time under Rule 3.27(1)(c) would not prejudice the Defendants as they were served only a few days after the one year expiry date set out in Rule 3.26. As such, the Appeal was granted.

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