Master Prowse

1.5: Rule contravention, non-compliance and irregularities
11.25: Real and substantial connection
11.27: Validating service

Case Summary

The Plaintiffs had not obtained an Order for service ex juris before serving one of the Defendants outside of Canada, as required by Rule 11.25(2)(c), and therefore sought to do so retroactively.

Master Prowse first noted that the Court is permitted to grant retroactive Orders pursuant to Rule 1.5, which allows parties to apply to the Court to cure a contravention, non-compliance, or irregularity where doing so will not cause irreparable harm to any party. The Master then explained that a number of factors were present which favoured the granting of the Order sought, including: (1) that the Order would have been granted if it had been sought in advance of service, as there was a real and substantial connection to Alberta; (2) the Defendant would not suffer irreparable harm due to the granting of the retroactive Order; and (3) that the Action had effectively been “frozen” against the Defendant in question until service could be properly effected.

Ultimately, Master Prowse declined to grant the Order sought, reasoning that existing case law “does not favour granting retroactive orders where a commencement document is served, without permission, outside of Canada”. The Master explained that Rule 11.27, which allows for the validation of improper service, has been narrowly read as not supporting retroactive Orders validating service ex juris.

Master Prowse took note that in 2012, the legislature had modified Rule 11.27 to add subsection (4), which allows a Plaintiff to validate service outside of Canada where a different method of service was used than that set out in an Order for service ex juris. In spite of this amendment, where no Order for service ex juris is obtained in advance, an Order to retroactively allow and validate service ex juris cannot be obtained, even by operation of Rule 11.27(4). Master Prowse held that “Much clearer language would be required” for the Rule to permit Orders retroactively validating service ex juris, where no Order was obtained in advance of service.  As such, the Plaintiffs’ Application was dismissed.

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