On March 16, 2019, Urban Square Holdings Ltd. (“Urban”) sent its Statement of Claim (“Claim”) to the Defendant, Del Fisher Insurance Inc (“Fisher”). The covering letter stated that the Claim was being provided for reference only and was not being formally served at that time (“Non-Formal Service”). Following the Non-Formal Service and failed resolution discussions, Urban sent its Affidavit of Records to Fisher on January 28, 2020. Fisher requested the documents from the Affidavit of Records on May 15, 2020. On January 21, 2021, Fisher requested a copy of the Affidavit of Service for the Claim. Urban was unable to locate it, and Fischer took the position that the Claim was a nullity because it was not served within time.

Urban applied for an Order validating service pursuant to Rule 11.27 or, in the alternative, an Order extending the time for service pursuant to Rule 3.27. Applications Judge Mason granted Urban’s Application validating service (“Order”). Fischer appealed the Order.

The Court noted that Rule 6.14 governs Appeals from an Application Judge’s decision, and that Rule 3.26 requires that a Statement of Claim be served within one year of filing. Justice Price agreed that service was not effected on the date of the Non-Formal Service, but that service was effected, at the very latest, when Fischer requested documents from the Affidavit of Records. At this point, Fischer knew it was engaged in the litigation process even if Urban continued to try to resolve the dispute in a timely and cost-effective way in accordance with Rule 1.2. The Court held that if it had not validated service, it would have granted Urban a one-month extension to file the Claim pursuant to Rule 3.27. In the result, Fischer’s Appeal was dismissed.