Wardill v. Peebles, 2012 ABQB 303

Court of Queen ’ s Bench of Alberta Citation: Wardill v. Peebles, 2012 ABQB 303 Date: 20120508 Docket: 1003 02819 Registry: Edmonton Between: Laurie Wardill and Her Majesty the Queen In Right of Alberta Plaintiffs - and - Thomas Peebles, Mohammed Al-Ghamdi, Peter Miles, Raubenheimer Denkema, Wynard Wessels, Femi Ayanrino, Yolande Westra and Alberta Health Services Operating a Hospital Known As the Queen Elizabeth II Hospital Defendants _______________________________________________________ Memorandum of Decision of L. A.

Smart, Master in Chambers _______________________________________________________ Introduction [ 1 ] The Defendants Mohammed Al-Ghambi and Femi Ayanrino apply to set aside my order made without notice on February 17, 2011 that extended the time for service of the statement of claim in this action. Rule 3.26 (1) and (2) apply to these circumstances: Time for service of statement of claim

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 theCourt on application filed before the one-year time limit expires, grants an extension of time for service.

(2) The extension of time for service under this rule must not exceed 3 months. [2] Pursuant to Rule 3.28(

a) failure to comply results in there being no further proceeding permitted in the action against adefendant who was not served on time. [3] The issue is whether or not there was sufficient evidence before me to grant such an order and to some extent what effortmust be made to effect service before seeking the extension. The affidavit filed in support of the extension application was prepared by alegal assistant with the Plaintiffs’ law firm. The substance of the affidavit was that the process server advised her that they had beenunable to effect service on those defendants.

She was told that in the case of Al-Ghambi attempts had been made to serve the defendantat his place of employment and he hadn’t been on shift, and in the case of Ayanrino that the process server had been informed thatdefendant was away from his clinic until March 28, 2011. The legal assistant then stated she made attempts to locate a home address ortelephone number for him. Ayanrino has filed an affidavit indicating that he was regularly at his “clinic” and that he was generallyavailable at the hospital where the service was being attempted. He had a website with his

schedule on it and his contact information wasaccessible through the telephone book and Canada 411. Argument and Discussion [4] Rule 3.26 is the successor to Rule 11 which spoke of a Statement of Claim being in force for 12 months and its expiry after ayear unless renewed. Despite this language the expiry before or after renewal without service had the same consequence that the claimagainst those not served came to an end (with prescribed exceptions under both the old and new rules).

Rule 11(6) required that anapplication for renewal be supported by an affidavit stating that one or more defendants had not been served and setting forth the reasonsfor the lack of service. The earlier rule spoke of renewal as opposed to extending time for service but the purpose of renewal was toeffect an extension of time. Under Rule 3.26 there is no express requirement for an affidavit in support setting out the requirementsspecified in Rule 11(6) or at all. [5] The Applicants note that an extension of time for service requires an order of the court.

It is not merely an administrative orclerical matter such that the Clerk of the Court can grant it. Failing to serve within time has a fatal consequence to the action. A decisionto extend the time for service should not be addressed in a perfunctory way as it calls upon the court to exercise a discretion. It is arguedthat a due diligence test ought to be applied to the efforts to serve a statement of claim. Simply put the evidence provided should state“why you need it and what have you done?” In Ayrayino’s case there is no express evidence of an attempt at service at all.

It makes nosense to have a deadline for service within 12 months if extensions are granted as a matter of course with not even the barest threshold ofevidence required. If that is the case why not make the time for service 15 months from the outset.

Meaning should be given to eachprovision as formalized in Rule 1.7(1) which reads: 1.7(1) The meaning of these rules is to be ascertained from their text, in light of the purpose and intention of these rules, and in thecontext in which a particular rule appears. [6] The Plaintiff notes the threshold for granting a renewal of the statement of claim was very low under the previous rule.Arguably with no specific requirements in Rule 3.26, no evidence is required in support of an application to extend time for service butcertainly there is nothing to support the argument that the threshold ought to be more onerous.

Master Breitkreuz in Gangl v. Burns,2010 ABQB 822 consider a similar application under the previous Rule 11 and citing Oberg v. Foothills Provincial General Hospital,1999 ABCA 76 stated the following: [8] The leading Alberta case appears to be Oberg v. The Foothills Provincial et al, 1999 ABCA 76 , 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 not 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. [ 7 ] There is also the question of why there is a two part approach on the time for service of a Statement of Claim. In the Alberta Law Reform Institute, The Rules Project, Reviewing Consultation Memorandum No. 12,14 (October 2004) it states that all Canadian jurisdictions allow for extension or renewal of the initial period for service.

Some have a shorter period, some allow for multiple extensions, and some allow extensions after expiry of the period. Alberta was said to have quite severe restrictions because the renewal period was relatively short, could only occur once and must be brought before expiry. Rule 11 “served as a check on the propensity of both lawyers and judges to allow litigation to drag on. . . it makes it inadvisable for lawyers to procrastinate when serving the statement of claim and it also removes judicial discretion to forgive such procrastination.

Traditionally, judges are reluctant to exercise their discretion not to renew the time for service because doing so can end a claim that may otherwise be valid. By eliminating discretion, Rule 11 removes that burden from the judiciary and replaces it with an objectively established deadline which is virtually absolute.” [ 8 ] The commentary isn’t particularly helpful in understanding the two part process other than “everyone does it”. It focuses more on limiting the ability to keep actions alive ostensibly with multiple renewals that had been available under earlier Rules.

Although the terminology has changed under the new Rules, the initial period for service with one extension available if an application is brought within the period, that is, the quite severe restrictions, have not been changed. Judges (and Masters) having been relieved of the burden of forgiving procrastination but are to be allowed one opportunity to exercise their discretion in the context of those restrictions. Conclusion [ 9 ] There is no suggestion of inappropriate delay or any prejudice arising from any delay in this case.

I am told the six other defendants have been served although there is no affidavit of service on the court file. Five defendants filed defences on April 18, 2011. An appeal was set down from my Order and also from a subsequent substitutional service Order granted by Master Schlosser. It does not appear that either of those appeals have proceeded to hearing. [ 10 ] I see nothing in the new Rule that suggests the reasoning in Oberg ought not to continue to apply. The threshold remains low.

Despite Master Breitkreuz ’ s conclusion in Gangl , in my view providing an explanation for not serving although not mandatory would be desirable when asking the court to exercise its discretion. In this case the affidavit in support is poorly drafted, lacking particularity and provides slim evidence to support the application for an extension of time. The threshold may be low but the cavalier approach often taken is dangerous when considering the consequence of failing to effect service in time.

[ 11 ] The evidence here nonetheless establishes some attempts for service were made in relation to Al-Ghamdi and information was obtained regarding availability of Ayanrino. With that information in hand should there be further efforts to locate and serve the Statement of Claim within the initial period? The Plaintiff knew where to find the defendants and it would appear that service could be effected within time if the extension was granted. That is precisely what happened albeit after a substitutional service order was obtained. The delay was not inappropriate nor as I said was any prejudice alleged.

Under the circumstances there appears to be no real utility in insisting that the Plaintiff incur additional expense in the hope that service might be achieved only somewhat earlier. I leave to another day what the consequence might be if real prejudice existed especially in the face of an affidavit similar to that filed in this case. [ 12 ] The application to set aside my Order of February 17, 2011 is dismissed. Dated at the City of Edmonton, Alberta this 8 th day of May, 2012. L. A. Smart M.C.C.Q.B.A.

Appearances: Paulette DeKelver Weir Bowen LLP for the Plaintiff/Respondent Wilson McCutchan Gowling Lafeur Henderson LLP Counsel for Ayanrino Walter McKall Bishop & McKenzie LLP Counsel for Al-Ghandi