Considerations On Service Of A Statement Of Claim

• Published date: 01 October 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: McLennan Ross LLP
• Author: Ms Michaela Kocon

by Michaela Kocon

In today's increasingly litigious world, it is imperative for both those in the legal field and non-legal field who may be involved in litigation to have a solid understanding of the service requirements for a Statement of Claim. This includes both serving a claim on an opposing party and being served as a Defendant. In some cases, consideration must be given where service may be deemed sufficient, even in situations where a document is not formally served according to the Alberta Rules of Court, Alta Reg 124/2010 (the 'Rules').

What the Rules say

Rules 3.26-3.28 specifically outline the formal service requirements of a commencement document, setting out very strict requirements for proper service. While service of all types of documents is governed by the Rules (see Part 11, Division 2 Service of Commencement Documents in Alberta for further information), a commencement document has specific and unique requirements. Failure to ensure a Statement of Claim is served within the required time period can be fatal to a claim, no matter how strong it may be. Generally, a claim must be served within one year as stated in the Rule below:

3.26(1) A statement of claim must be served on the defendant within one year after the date that the statement of claim is filed unless the Court, on application filed before the one-year time limit expires, grants an extension of time for service.

How can an extension be granted?

There are certain circumstances in which the Court will permit an extension of time for service to be granted up to a maximum of three months. This time limit is designed to prevent unnecessary litigation delays, balancing 'a Plaintiff's needs with the prevention of undue delay' (Oberg v Foothills Provincial General Hospital, (1999), 232 AR 263). Rule 3.27(1) outlines the circumstances governing an extension:

(a) if a defendant, anyone purporting to be a defendant, or a lawyer or other person purporting to negotiate on behalf of a defendant, has caused the plaintiff or the plaintiff's lawyer to reasonably believe and to rely on the belief that

1. the defendant has been served,
2. liability is not or will not be contested, or
3. a time limit or any time period relating to the action will not be relied on or will be waived;

(b) if an order for substitutional service, an order dispensing with service or an order validating service is set aside;

(c) special or extraordinary circumstances exist resulting solely from the defendant's conduct or from the conduct of a person who is not a party to the action.

What happens if the claim is not served in time?

Rule 3.28 states that if a Statement of Claim is not served within the time period outlined in 3.26 (one year with a potential additional 3 months), the Plaintiff is unable to take any further proceedings against the Defendant. This means the claim will no longer be active.

There are a number of decided cases that uphold the 'strict and mandatory limit on service of a Statement of Claim' (Foster v Robb, 2011 ABQB 776). In Foster, the Court...