Foster v. Robb, 2011 ABQB 776

Court of Queen’s Bench of Alberta Citation: Foster v. Robb, 2011 ABQB 776 Date: 20111208 Docket: 0901 13891 Registry: Calgary Between: Isaac Foster Plaintiff - and - Leslie Robb, Dale Squair, South Rock Ltd., and Her Majesty the Queen In Right of Alberta Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W. A.

Tilleman _______________________________________________________ Introduction [ 1 ] In a multi-party case involving fatalities from a motor vehicle accident, two of the Defendants bring application for dismissal of the Plaintiff’s action against them, based on the argument the Statement of Claim was not served in time. Issue [ 2 ][ What is the effect of the new time limit Rules 3.26 - 3.28 on a Statement of Claim issued in 2009, before the new Rules of Court 1 came into force?

Discussion and Argument [ 3 ][ The Plaintiff filed his Statement of Claim on September 15, 2009 when the old Rules of Court 2 were still in effect. Under those Rules, the Statement of Claim would have expired after 12 months, or 15 months if the Court granted an extension. No extension was

granted in this case. [ 4 ] The Defendants Leslie Robb and South Rock Ltd. apply pursuant to Rules 3.26 - 3.28 to dismiss the Plaintiff’s case against them. Their arguments are essentially the same. They cite the following principles developed under the old Rules and assert that those principles have been incorporated into the requirements of Rules 3.26 - 3.28: - failure to serve on time leaves the Court with little or no option: see Martinez v. Hogeweide, 1998 ABCA 34 , 209 A.R. 388 ; - after the Statement of Claim expires, service is impossible: see Hansraj v.

Ao, 2004 ABCA 223 , 354 A.R. 91 , at para. 63 ; - no relief from forfeiture flows where the Plaintiff fails to serve the Statement of Claim in time: see Hansraj , supra , at para. 66 ; - exceptions to the service rule are rare: see Hiep v. Cain, 2004 ABQB 876 , 365 A.R. 366 , at para. 25 ; and - for the rare exceptions, the onus is on the Plaintiff: see Hiep , supra , at para. 34. [ 5 ] Affidavit evidence from the Defendant Robb and from Mr.

Boehk (for the Defendant South Rock Ltd.), as well as procedure records from the Court files, show there was no service on these Defendants, no application to renew, and no application for substitutional service. Plaintiff’s counsel, who is new, does not dispute the facts. He also acknowledges that even if the claims came to the attention of the Defendants’ counsel, it does not matter; the Defendants must be served and were not. Conclusion [ 6 ] Rules 3.26 - 3.28 are similar to old Rule 11 and impose a strict and mandatory limit on service of a Statement of Claim.

None of the rare exceptions set out in the case law apply to the facts of this case. Therefore, pursuant to Rule 3.28, the Statements of Claim are dead as against the Defendants South Rock Ltd. and Leslie Robb and no further proceedings may be taken against them. Costs [ 7 ] The Defendant Leslie Robb is not seeking costs. Costs for the Defendant South Rock Ltd. may be spoken to. Heard on the 7 th day of December, 2011. Dated at the City of Calgary, Alberta this 8 th day of December, 2011. W. A. Tilleman J.C.Q.B.A. Appearances:

Thomas J. Taylor for the Plaintiff Regan S. Dean for the Defendant, Leslie Robb Celeste Hutchinson for the Defendant, South Rock Ltd. 1 Alta. Reg. 124/2010 . 2 Alta. Reg. 390/68