Gangl v. Burns, 2010 ABQB 822

Court of Queen ’ s Bench of Alberta Citation: Gangl v. Burns, 2010 ABQB 822 Date: 20101221 Docket: 0903 10460 Registry: Edmonton Between: David Aloysius Gangl Plaintiff - and - Duncan Burns, Thomas Pennie, Philip Leeman, Kyle Westergaard, Marc Chmilar and Michael J. Boyd Defendants _______________________________________________________ Memorandum of Decision of W.

Breitkreuz, Master in Chambers _______________________________________________________ [ 1 ] This is an application on behalf of the defendant, Thomas Pennie to set aside an ex parte order I granted on July 7, 2010 permitting Thomas Pennie to be served substitutionally at his place of employment, and extending the time for service of the statement of claim for a period of three months. [ 2 ] The affidavit in support of the application on July 7, refers to the attempts made between June 7, 2010 and June 24, 2010 to serve the defendant.

There is no reference in the affidavit about the statement of claim expiring on July 8, 2010.

[ 3 ] A transcript of the ex parte application on July 7 was not made available to me at the application on November 1 st , but a transcript was provided to me a few days later. [ 4 ] On July 7 a student-at-law, which I will refer to as counsel, addressed me and told me that a substitutional service order was necessary and the expiry date is July 8. “Sir we’re asking for an extension of time”. Two lines later she says “we’re just requesting an extension of time for it to be served”.

A few lines later she says “sir we’re just asking for period of three months from the date of July 8 if we can extend service?” [ 5 ] Counsel then says she passed up an order: we exchanged some comments about that to the effect that I don’t see it and I also said I don’t see an affidavit in support for your application to renew your statement of claim . She responded with “thanks”. The application ended at that point.

I can only assume that she handed an affidavit in support of the application up to me and I obviously signed the order. [ 6 ] Counsel for the moving defendant had the disadvantage of not having that transcript at the moving application to set aside my ex parte order because the thrust of her argument at the November 1 st application is that there was nothing before me to support an inference that an extension of time was required, because the affidavit didn’t refer to an extension of time for service. [ 7 ] Plaintiff’s counsel on the other hand argues that there is no requirement that the affidavit in support must specifically refer to an extension of time.

She argues that the court must have enough information to draw an inference that the lack of service is not a delay tactic, and that an extension for service is required. [ 8 ] The leading Alberta case appears to be Oberg v. The Foothills Provincial General Hospital et al , 1999 ABCA 76 . [ 9 ] Madam Justice Conrad wrote the unanimous decision. [ 10 ] At page 4 it appears clear to me that the wording of the Rule itself has taken care of any delay argument. She says at paragraph 12: “The potential for excessive delay has already been limited by the timing and number of restrictions.

Because renewal applications are no longer allowed outside the one-year period, the previous high standard as to the reasons for renewal is not as essential.” [ 11 ] At paragraph 13 she says: “Moreover, there is no requirement to serve a statement of claim as soon as possible, or practical, after it is issued. Service on the last day is sufficient and a party cannot be faulted for serving on that day.

The need for reasons where an application is made within the time period should not be onerous.” [ 12 ] At paragraph 16 she says: “There is no need to serve earlier than the one-year limitation, so the reasons need not address why it was not served earlier . This is unlike the old Rule where the application could be served outside the initial one-year period.” (emphasis added) [ 13 ] It is apparent from this that the court is not entitled to know the reason the statement of claim hasn’t been served.

All the court needs to know is that the statement of claim hasn’t been served,( which must be fairly obvious in an application to extend the time for service) and an order is requested to serve within the three additional months required.

[ 14 ] This is not a case where I had to draw an inference that there was no delay. Oberg says so. If no reasons are required then no inference is required. [ 15 ] Notwithstanding that the affidavit in support explained the difficulties encountered in serving the defendant in the last month before the statement of claim expired, and counsel told me it expires the next day and an extension of time is required. [ 16 ] I believe I made the appropriate decision when I granted the extension of time on July 7, 2010. [ 17 ] The application is dismissed with costs to the successful plaintiff.

Heard on the 1 st day of November, 2010. Dated at the City of Edmonton, Alberta this 21 st day of December, 2010. W. Breitkreuz M.C.C.Q.B.A. Appearances: Erika Norheim Engel Brubaker for the Plaintiff Lorena Harris Fraser Milner Casgrain LLP for the Defendants