Fraser, Bielby and crighton jja

1.1: What these rules do
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 Plaintiff (“Ms. Stremich”) filed a Statement of Claim alleging professional negligence against her former counsel and law firm (“Pefanis”). The Master struck the Claim pursuant to Rule 3.28 on the basis that it was served outside the one year time limit provided in Rule 3.26. Upon Appeal, the Chambers Judge granted Ms. Stremich an extension of time for Service of her Statement of Claim under Rule 3.27(1)(c). Ms. Stremich argued that the delay in service was due to failures by her process server.

The Court (Crighton J.A. dissenting) held that a process server hired by a plaintiff may be “a person who is not a party to the action” within Rule 3.27(c). The Court considered whether there were “special or extraordinary circumstances” under Rule 3.27(c) which were connected to the lack of service to support the granting of an extension for service. The Court observed that the failure to effect service in a timely fashion in this case was the result of the process server’s conduct. Further, although Ms. Stremich did not provide evidence relating to attempted service by alternate means, or apply for an extension of time for Service prior to the expiry of the Statement of Claim, Ms. Stremich was limited in her efforts by her physical disabilities which the Court observed would have been “readily apparent” when Ms. Stremich appeared before the lower court. The Court of Appeal held that the Chambers Judge’s Decision to extend the time for Service was a reasonable and valid exercise of discretion, and dismissed the Appeal

Crighton J.A. would have allowed the Appeal, stating that the words “special” and “extraordinary” in Rule 3.27 must be construed narrowly to achieve the legislative intent of the Rules and to eliminate procrastination and delay. Justice Crighton stated that the Rules of Court govern the behaviour of all litigants, whether or not they are represented pursuant to Rule 1.1. Crighton J.A. observed that the evidence on the Record demonstrated that Ms. Stremich was aware of the failure to effect Service before the expiry of the Statement of Claim, but failed to address whether the process server had been notified of the precise date the Statement of Claim expired and the reasons for the failure to attempt alternate means of Service or apply for an extension of time to Serve the Statement of Claim.

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