Kumar v. Whitehead, 2011 ABQB 579

Court of Queen ’ s Bench of Alberta Citation: Kumar v. Whitehead, 2011 ABQB 579 Date: 20110926 Docket: 1103 14427 Registry: Edmonton Between: Vinod Kumar Plaintiff (Applicant) - and - Danielle Melissa Whitehead and Jason Adam Eayanan Defendants (Respondents) _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] The Plaintiff (Applicant) Vinod Kumar applies to set aside an Order of this Court dated the 20 th of September, 2011 which extended the time to vacate the residential premises occupied by the Defendants (Respondents), his tenants.

The Applicant did not attend the hearing in this Court during which that Order was granted on September 20, 2011, because he claims that he was not properly served with the application. [ 2 ] The Respondents did not appear before me on September 23, 2011, when this application was heard, notwithstanding that there is an affidavit of the Applicant deposing that he personally served them on the 22 nd of September, 2011.

[ 3 ] In any event, the Applicant now deposes in his affidavit dated the 21 st of September, 2011 that he was not in Edmonton on September 20, 2011, although he does acknowledge that he received verbal notice from the Respondent Ms. Whitehead that she had filed a court application for 10:00 a.m. on September 20, 2011. [ 4 ] Ms. Whitehead deposed on September 19, 2011, in support of her September 20, 2011, application that she did not receive notice of the hearing before the Residential Tenancy Dispute Resolution Service until the day after the hearing scheduled for 1:30 p.m. on September 12, 2011.

The landlord, Mr. Kumar, had also sworn an affidavit of personal service by him upon Ms. Whitehead and Mr. Eayanan and deposing that he delivered copies on September 6, 2011.

Conclusion [ 5 ] Given the repeated scenario of each of the parties filing sworn affidavits of service, but the party served seemingly never attending, and then in response swearing a further affidavit indicating they never received documents until after the fact, it is probably not reliable to assume that anybody has been served on a timely basis with the present application either. [ 6 ] Furthermore even on the basis of the affidavit of service of Mr.

Kumar affirmed on September 23, 2011, his purported service on the Respondents on September 22, 2011, for a return date of September 23, 2011, for his present application is insufficient, and I am hesitant to shorten the time for service given the history of dealings between these parties. [ 7 ] As such, I will not set aside this Court ’ s Order dated September 20, 2011, allowing the Respondents to remain in the residential premises they rent from the Applicant Mr. Kumar until September 28, 2011 at noon. I do however note Mr.

Kumar ’ s sworn information that he did not receive notice of the hearing of September 20, 2011, in this Court, and that he was in fact not in Edmonton on that day having gone to work in Hardisty, Alberta for his company. [ 8 ] I also note in Mr. Kumar ’ s sworn affidavit of September 21, 2011, he deposes that Ms. Whitehead has only paid him $800.00 for which he issued a receipt, but that no other monies have ever been received in terms of rent from Ms. Whitehead since August 11, 2011. [ 9 ] Finally I note that Mr.

Kumar deposes in his September 21, 2011, affidavit that he personally served the Respondents for the Residential Tenancy Dispute Resolution Service hearing on September 6, 2011, at 7:30 p.m. at their residence, so that the Respondents did, according to Mr. Kumar, have adequate notice of the September 12, 2011, 1:30 p.m. Residential Tenancy Dispute Resolution hearing. Heard on the 23 rd day of September, 2011. Dated at the City of Edmonton, Alberta this 26 th day of September, 2011. Donald Lee J.C.Q.B.A.

Appearances: Vinod Kumar, on his own behalf Danielle Melissa Whitehead and Jason Adam Eayanan, did not appear