Sanderson Estate v. Potter, 2012 ABQB 593

Court of Queen ’ s Bench of Alberta Citation: Sanderson Estate v. Potter, 2012 ABQB 593 Date: 20120927 Docket: 0603 06167, 0603 06168 Registry: Edmonton Between: 0603 06167 Karen Sanderson, Administrator of the Estate of Evelynn Faye Sanderson , deceased, on behalf of the Estate of Evelynn Faye Sanderson, Karen Joan Sanderson and Her Majesty the Queen in Right of Alberta Plaintiffs - and - Michael G. Potter also known as Michael G.

Gramsch, Linda Dianne Gramsch, Chrysler Financial Canada/Services Financiers Chrysler Canada, DaimlerChrysler Financial Services Canada Inc., Christopher Reimer also known as Christopher Raymond Broeffle or Christopher Raymond Broeffle Reimer, John Doe No. 1, John Doe No. 2, XYZ Corporation, Administrator of the Motor Vehicle Accident Claims Act , Municipal District of Greenview No. 16, Chariot Energy Inc., Kereco Energy Ltd., ATCO Power Inc., ATCO Ltd., A.B.

Hollingworth and Son Construction Ltd., Burlington Resources Canada Partnership, Burlington Resources Oil & Gas Company LP, Burlington Resources Canada (Hunter) Ltd., Burlington Resources Canada Corporation, Burlington Resources Canada Energy Ltd., Burlington Resources Canada Holdings ULC, Burlington Resources Canada Inc., Burlington Resources Canada Ltd., Conocophillips Company, Conocophillips NGL Marketing (Canada) ULC, Conocophillips Canada Resources Corp., Paramount Resources Ltd., and 620057 Alberta Ltd., operating under the trade name and style of Valleyview Liquor Store Defendants Between: 0603 06168 Jeremy Lowe and Her Majesty the Queen in Right of Alberta Plaintiffs - and - Michael G.

Potter also known as Michael G. Gramsch, Linda Dianne Gramsch, Chrysler Financial Canada/Services Financiers Chrysler Canada, DaimlerChrysler Financial Services Canada Inc./Services Financiers DaimlerChrysler Canada Inc., Christopher Reimer also known as Christopher Raymond Broeffle or Christopher Raymond Broeffle Reimer, John Doe No. 1, John Doe No. 2, XYZ Corporation, Administrator of the Motor Vehicle Accident Claims Act , Municipal District of Greenview No. 16, Chariot Energy Inc., Kereco Energy Ltd., ATCO Power Inc., ATCO Ltd., A.B.

Hollingworth and Son Construction Ltd., Burlington Resources Canada Partnership, Burlington Resources Oil & Gas Company LP, Burlington Resources Canada (Hunter) Ltd., Burlington Resources Canada Corporation, Burlington Resources Canada Energy Ltd., Burlington Resources Canada Holdings ULC, Burlington Resources Canada Inc., Burlington Resources Canada Ltd., Conocophillips Company, Conocophillips NGL Marketing (Canada) ULC, Conocophillips Canada Resources Corp., Paramount Resources Ltd., and

620057 Alberta Ltd., operating under the trade name and style of Valleyview Liquor Store Defendants Corrected judgment: A corrigendum was issued on October 17, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.C. Read _______________________________________________________

Summary: [ 1 ] A Defendant was noted in default in two actions by Plaintiffs, relying upon the erroneous affidavit of a process server who swore he had served the Defendant with the Statements of Claim in both actions. Long after the Statements of Claim had expired, it was determined that someone other than the Defendant had, in fact, been served. The existence of the claims did not come to the attention of the Defendant until almost two years later.

He brought application to set aside the default and strike the Statements of Claim against him or, alternatively to grant him leave and extend time to permit him to file Statements of Defence. Facts: [ 2 ] On May 18, 2004, a serious motor vehicle accident killed Evelynn Sanderson and permanently injured Jeremy Lowe.

The accident allegedly occurred after some stunting and racing behaviour involving two motor vehicles, one of which was driven by the Applicant, Christopher Broeffle Reimer ( “ Reimer ” ). [ 3 ] Two Statements of Claim issued on May 16, 2006 as a result of this accident, both of which named Reimer as one of a number of defendants. Gary Keshen ( “ Keshen ” ), a process server, was instructed by counsel for the Plaintiffs in both actions to serve the Statements of Claim.

Keshen swore an Affidavit of Service on November 2, 2006, deposing that he had served Reimer on October 30, 2006 by leaving a copy with him at an address in Valleyview, Alberta. [ 4 ] It is agreed between the parties that the individual served by Keshen at the address in Valleyview, was not Reimer. Keshen has no specific recollection of his attendance at the address.

He said that it is his standard practice when serving a Statement of Claim to ask the individual to produce photo identification but that he would not, necessarily, require photo identification, if the individual being served confirmed his identity verbally.

Except when in possession of a Substitutional Service Order, Keshen said he has never left a Statement of Claim with an individual for service when he or she denied they were the individual Keshen was attempting to serve. [ 5 ] Notwithstanding the best efforts of the parties to determine what exactly occurred respecting service of Reimer, there is no further explanation, other than the information that someone named Richard Seward occupied the Valleyview address on October 30, 2006, when Keshen purported to serve Reimer. [ 6 ] There is no suggestion that Reimer was evading service or unavailable to be served.

He swore that he had moved from the address in Valleyview many months before the process server attended and provided evidence, in the form of rent receipts and lease documents, that he was living elsewhere in Alberta and working in the vicinity of Spirit River when he was purportedly served in Valleyview.

[7] Reimer was noted in default in both actions on December 20, 2006. [8] The first notice Reimer received that he was being sued was in October, 2007, when he received a letter from a lawyeracting on behalf of the Administrator of the Motor Vehicle Accident Claims Fund advising him of the lawsuits that had been commencedagainst him and that he had been noted in default. [9] On July 29, 2008 and on August 29, 2008, Reimer swore affidavits deposing that he had never been served with theStatements of Claim. [10] A standstill agreement between the parties provides that the passage of time from the early part of 2008 until the present isnot to be used against either party. [11] An extensive revision of the Alberta Rules of Court came into effect on November 1, 2010. [12] The only parties who appeared on this application were the Applicant Reimer and the Respondent Estate of EvelynnSanderson (“Sanderson Estate”).

However, the parties filed applications in both actions and agreed that this decision would apply both toaction 0603 06167 and to action 0603 06168. [13] The parties raise the following five issues: a. What is the current status of the Statement of Claim? b. Which Rules of Court apply, those in effect when Reimer was noted in default or those in effect at the time of this application? c. Should the Noting in Default be set aside? d. If so, does the Court have discretion to permit renewal of the Statement of Claim? e. If so, should the Court exercise its discretion here? A.

What is the Current Status of the Statement of Claim? [14] It is common ground between the parties that the Statement of Claim was not served within twelve months of its issuance, asrequired under Rule 11(1) of the Alberta Rules of Court (A.R. 390/68) (the “Former Rules”) or within one year as required under Rule3.26(1) of the Alberta Rules of Court (A.R. 124/2010) (the “Current Rules”).

Nor is there any evidence that it otherwise came to theattention of Reimer within the deadline period. [15] Under the Former Rules, if a Statement of Claim is not served within the requisite time period, it is declared to have expired.It does not become a nullity; it is simply not in force: Shah v Christiansen (1992), 1992 ABCA 297 , 5 Alta LR (3d) 174 (CA)and Nagy v Phillips (1996), 1996 ABCA 280 , 41 Alta LR (3d) 58 (CA). The time limit is mandatory: Martinez v Hogeweide,1998 ABCA 34, at para 11; Hansraj v Ao, 2004 ABCA 223 at para 63.

No further action can be taken against a defendant and he cannotbe served outside of the time period unless the Statement of Claim can be validly renewed: Hansraj v Ao at para 56. B. Do the Former or the Current Rules Apply? [16] Before considering whether the Statement of Claim can now validly be renewed, it is first necessary to determine whether theFormer or Current Rules apply.

[ 17 ] The Applicant argues that the Former Rules apply as the Statement of Claim was issued under the Former Rules and ‘ died ’ under those Rules before the Current Rules came into effect. Thus, it is argued that the action was not an “ existing proceeding ” as defined in Rule 15.1(

a) of the Current Rules and they do not apply. [ 18 ] I disagree for three reasons. [ 19 ] Rule 15.2(1) of the Current Rules directs that, unless an enactment or other rule provides otherwise, the Current Rules apply to every existing proceeding. An existing proceeding is defined in Rule 15.1(

a) as “ a court proceeding commenced but not concluded under the former rules ” . Here, although Reimer was noted in default, the action has continued against other defendants and is an ongoing proceeding. Further, as I have already indicated, the case law is clear: if a statement of claim is not served within the requisite time period, it is not a nullity but has simply expired. It is, therefore, not accurate to refer to it as ‘ dead ’ . Although it has expired, now that they are in effect, any application to renew it must be made under the Current Rules: Nixon v Timms , 2012 ABQB 315 at para 42 .

Lastly, Rule 15.2(2) provides that: Every order or judgment made under the former rules and everything done in the course of an existing proceeding is to be considered to have been done under these rules and has the same effect under these rules as it had under the former rules. Clearly, therefore, because of Rule 15.2(2) although the Statement of Claim expired under the Former Rules and Reimer was noted in default under those Rules, those actions are to be considered as having been done under the Current Rules. [ 20 ] For these reasons, I am satisfied that the Current Rules apply to this application. C.

Should the Noting in Default be Set Aside ? [ 21 ] Both parties acknowledge that when Reimer was noted in default he had not been served. [ 22 ] In Anstar Enterprises Ltd. v Transamerica Life Canada , 2009 ABCA 196 , the Court of Appeal considered a chambers decision in which, on an application for default judgment, a defendant was permitted to set aside a praecipe to note in default and to file a statement of defence.

At para 13, the Court of Appeal held: 13 Because a default judgment does not involve an adjudication on the merits of a claim, the plaintiff must act in "the utmost good faith and in strict compliance with the Rules": William Stevenson and J.E. C ô t é , Civil Procedure Encyclopedia (Edmonton: Juriliber Limited, 2003) at 17-2. In other words, a party seeking to hold an opposing party in default must strictly comply with the procedural rules.

Accordingly, where there is a flaw in the procedure leading up to default judgment, a defendant, proceeding promptly, is entitled to open up the default judgment as of right. [ 23 ] While Anstar was decided under the Former Rules, there is no reason to think it is not equally applicable to the Current Rules. [ 24 ] In the case at bar, the Praecipe to Note in Default was entered without proper service having been effected. There is no suggestion of waiver, acquiescence or delay by Reimer. There is also no suggestion of bad faith on behalf of the Plaintiff. However the Rules were not strictly complied with.

The Praecipe to Note in Default should be set aside and I so order. D. Does the Court have the discretion to Renew the Statement of Claim ?

[ 25 ] Rules 3.26 to 3.28 of the Current Rules state: 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.

(2) The extension of time for service under this rule must not exceed 3 months.

(3) Rule 13.5 does not apply to this rule or to an extension of time ordered under this rule. 3.27(1) The Court may, at any time, grant an extension of time for service of a statement of claim in any of the following circumstances: (

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 (

i) the defendant has been served, (ii) liability is not or will not be contested, or (iii) 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.

(2) If an extension of time is granted under subrule (1), no further extension of time may be granted under this rule and rule 13.5 does not apply unless different or new circumstances described in subrule (1) are established to the Court's satisfaction. 3.28 If a statement of claim is not served on a defendant within the time or extended time for service, (

a) no further proceeding may be taken in the action against a defendant who was not served in time, and (

b) a statement of claim served on any defendant in time is unaffected by the failure to serve any other defendant in time. [ 26 ] Rules 3.26 to 3.28 are similar to Rule 11 under the Former Rules which provided: 11(1) A statement of claim is in force for a period of 12 months commencing on the day that the statement of claim is issued and it expires at the end of the day of the first anniversary of the day that it is issued.

(2) The Court may, on application, grant an order renewing a statement of claim for a further period not exceeding 3 months.

(3) An application under subrule (2) may be brought at any time during the period of time referred to in subrule (1) but not after the termination of that period.

(4) Rule 548 does not apply to this Rule.

(5) A statement of claim may only be renewed once under subrule (2).

(6) Every application under subrule (2) shall be supported by an affidavit stating that one or more defendants have not been served and setting forth the reasons for the lack of service.

(7) When an order under subrule (2) is filed, the clerk shall sign and seal an endorsement on the statement of claim stating: "Renewed for the period of months from by order of ".

(8) Any copy of a statement of claim that is served after an order has been granted under subrule (2) in respect of that statement of claim must bear a copy of the endorsement referred to in subrule (7).

(9) Notwithstanding subrule (3), if the Court finds as a fact (

a) that, before a statement of claim expired, (

i) a defendant, (ii) anyone purporting to be a defendant, or (iii) any lawyer or other person purporting to negotiate on behalf of a defendant caused the plaintiff or the plaintiff's lawyer to reasonably believe, and to rely on that belief, that (iv) the defendant had been served, (

v) liability was not or would not be contested, or (vi) the time limits provided for in subrule (3) or any other time limits that relate to the action would not be relied on or would be waived, and (

b) that the statement of claim has expired, the Court may by order renew that statement of claim for a period of time not exceeding 3 months from the day that the order was made.

(10) A statement of claim renewed pursuant to an order made under subrule (9) operates only as against the defendant in respect of whom the order was made. [ 27 ] As can be seen, Rule 3.27(

a) carries forward the three situations that allowed for a renewal of a Statement of Claim under Rule 11(9). There is minimal change in the wording. Rule 3.27(

a) continues to recognize the common law defences of waiver or estoppel or equity based on a standstill agreement. In Foster v Robb , 2011 ABQB 776 , the Court held that Rules 3.26 - 3.28 are similar to old Rule 11 and that the principles developed under the Former Rules have been incorporated into the requirements of Rules 3.26 - 3.28.

That Court held further that Rules 3.26 - 3.28 impose a strict and mandatory limit on the service of a statement of claim and only the rare exceptions listed in Rule 3.27 alter the limit on service. [ 28 ] Rule 3.27 also contains two new circumstances in which the renewal of a statement of claim will be allowed: when an order for substitutional service, an order dispensing with service or an order validating service is set aside (Rule 3.27(1)(b)) and when

“ 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 (Rule 3.27(1)(c)). [ 29 ] An explanation for the rationale for the inclusion of the exceptions found at Rule 3.27(

b) and (

c) may be found in the Alberta Law Reform Institute, Consultation Memorandum No. 12.14: Miscellaneous Issues . The Rules Project General Rewrite Committee stated: [94] Instead of trying to list in the Rule all the specific scenarios justifying an exception to Rule 11, the Committee wonders if there should be a general exception to Rule 11 that would give a court the discretion, at any time, to extend the time for service for a specified period if there are special or exceptional circumstances to justify the extension.

Such an exception would allow a court to remedy the problem when dealing with a truly untraceable defendant in any type of litigation, but not when dealing with other situations where service has been legitimately set aside. It would also cover other circumstances where it would be unfair not to let a plaintiff serve a statement of claim despite the passage of time.

This general exception would also eliminate the need to list the exceptions currently contained in Rule 11(9) relating to waiver and estoppel, as they would be subsumed in the general exception’s concept of exceptional circumstances. (However, the prohibition in Rule 11(4) against the application of Rule 548 to extend time would continue to apply generally). [95] The potential problem with having such a general exception is that judges may use it too loosely and grant extensions in less than exceptional circumstances, thereby undermining the legislative intent of Rule 11 to eliminate procrastination and delay.

Any provision will have to be carefully worded to discourage that outcome. [96] The Committee seeks the opinions and comments of the legal profession and judiciary about whether such a general exception to Rule 11 should be created. [ 30 ] The list of exceptions contained in Rule 11(9) were not removed as suggested by the Committee.

However, the Current Rules also include the “ general exception ” along with a concept of “ exceptional circumstances ” . [ 31 ] The Committee ’ s concern that “ judges may use [the general exception] too loosely and grant extensions in less than exceptional circumstances ” suggests that the general exception should be limited and that the words “ special and extraordinary circumstances ” should be interpreted narrowly. [ 32 ] I conclude, that under the Current Rules, I have the discretion to renew the Statement of Claim. E.

Should the Court Exercise its Discretion Here ? [ 33 ] There is no general equitable or discretionary power to bypass the Rules and allow for the renewal of a statement of claim when the statutory provisions are not met. The equitable power to relieve against forfeitures has no application to this situation: Hansraj v Ao , at para 121 .

An expired statement of claim can only be renewed if the specific statutory requirements under the Rules are met. [ 34 ] The Plaintiff submits that an extension of the time for filing their Statement of Claim should be granted on the ground of Rule 3.27(1)(a), because someone purporting to be Reimer caused the Plaintiff ’ s lawyer to believe that Reimer had been served. However, the case authorities make it clear that the onus of proving one of the exceptions lies with the Plaintiff and, here, there is no evidence to suggest that the individual who was at the residence “ purported to be the defendant ” .

Nor is there any evidence that the individual apparently served at the Valleyview address did anything to cause the Plaintiff or their lawyer to believe that Reimer had been served. Indeed, neither the Plaintiff nor their lawyer had any discussions with the person who was at the residence and was served. Instead, it was the process server, for reasons that are unclear, who caused the Plaintiff to believe that Reimer had been served.

The process server is an agent of both the Plaintiff and Plaintiff ’ s counsel: Metaldoor Hardware and Installations Ltd. v York Region District School Board , 2012 ONSC 3067 at para 42 . As it was not Reimer or someone purporting to be Reimer that caused the belief in service but the agent of the Plaintiff that caused this belief, Rule 3.27(1)(

a) does not assist the Plaintiff. [ 35 ] Rule 3.27(1)(

b) is inapplicable here. There was no order for substitutional service or order validating service.

[ 36 ] There remains, however, the “ general exception ” set out in Rule 3.27(1)(c). This provision was not included in the Former Rules and there has been little judicial consideration of it as yet. From my research, it appears that only two reported cases have considered this section. [ 37 ] In Nixon v Timms , op cit a process server swore in an affidavit of service that he had personally served the defendant, Timms. At later viva voce proceedings, the process server swore that the person he served had identified himself at the door as “ Michael ” , the first name of Mr.

Timms and that he had confirmed the identity of Mr. Timms with an unnamed neighbour. The person actually served, denied under oath having said anything of the sort to the process server and had a specific recall of the process server ’ s attendance, and told him he was not Mr. Timms. Timms testified that he was not served and was, in fact, out of the country at the time. The Court disbelieved the process server and accepted instead the other evidence, finding that the process server had sworn a false affidavit.

At para 47, the Court concluded: Rule 3.27 specifically contemplates the kind of unusual and entirely unanticipated consequence of a false affidavit being sworn upon which an entire case would stand or fall.

It is such an unusual and extraordinary circumstance that one could hardly imagine occurring, let alone expect it to arise shortly after the implementation of Rule 3.27 which provides the obvious remedy in order that neither party be prejudiced. [ 38 ] On the other hand, in Vanden Brink v Russell , 2012 ABQB 523 , in comments that must be seen as obiter , given his disposition of the case, a Master of the Court of Queen ’ s Bench said this in respect to Rule 3.27: 22 With the current unsettled state of the law as to onus, a plaintiff obtaining a default judgment faces the prospect of that judgment later being set aside based on a bare denial of service by the defendant.

The consequence of setting aside the judgment may be that time for service of the statement of claim will have elapsed, and the cause of action now lost due to limitations issues. While Rule 3.27(1)(

b) allows for the time for service of a statement of claim to be extended where, for example, an order for substitutional service is later set aside, there is no provision to extend the time for service of a statement of claim where proof of service, upon which a default judgment has been issued, is later rejected. [ 39 ] The purpose of the Rule is to ensure that a plaintiff takes timely action in pursuing a claim and to encourage expeditious litigation.

In this case, although the Statement of Claim was issued only shortly before the expiry of the relevant limitation period, the Plaintiff did take timely action in serving it. The lack of service was not caused by any inaction on the part of the Plaintiff, who relied upon the affidavit of service of his agent the process server. It was the mistake or negligence of the process server, and the reliance of the Plaintiff on this error, that resulted in Reimer not being served while the Statement of Claim was in force.

However, although the parties are agreed that the affidavit of service is erroneous, unlike the situation in Nixon v Timms , where the Court found that the affidavit of service was fraudulent, there is no evidence here of what actually happened. Nor can it be said that the circumstances of this case arose from the Defendant ’ s conduct or the conduct of a person who is not a party to the action. [ 40 ] However, although the process server is the agent of the Plaintiff, that does not make him a party to the action. I interpret the words “ person who is not a party to the action ” in Rule 327(1)(

c) to include a process server who has mistakenly or negligently filed an erroneous affidavit of service. [ 41 ] Process servers are commonly used in situations such as this, where an action is commenced and personal service is required. The use of a process server is, therefore, hardly a special or extraordinary circumstance. Nor, I suspect, is it a special or extraordinary circumstance for a process server to have difficulty with positive identification of someone he or she serves.

The question is, do the circumstances here constitute a “ special ” or “ extraordinary ” circumstance as contemplated in Rule 327(1)(c)? [ 42 ] The Shorter Oxford English Dictionary , (5 th ed) Oxford, England: Oxford University Press, 2002, defines ‘ extraordinary ’ as “ out of the usual or regular course or order; special ” , “ of a kind not usually met with, exceptional; now esp so exceptional as to provoke astonishment ” . It defines ‘ special ’ as “ exceptional in quality or degree; unusual, out of the ordinary ” . [ 43 ] In Nixon v.

Timms , the process server was found to have lied on an affidavit of service. As the Court there found, such a circumstance is so rare as to be almost unimaginable. Such a circumstance is clearly “ extraordinary ” . Here, as in Nixon , the affidavit of service is incorrect. However, it is false and not fraudulent . The process server was mistaken in his affidavit. He did not serve Reimer as

he swore he did. Although a mistaken affidavit is not the same as a fraudulent one, the mistake here could not have occurred throughmere inadvertence. In the absence of any evidence that someone misled the process server, I must conclude that the process server was atleast, careless and perhaps negligent. In my view, the mistaken affidavit sworn by the process server and relied upon by the Plaintiff, is a‘special’ circumstance such as contemplated by the Rule. [44] A decision to permit the renewal of an expired statement of claim is a discretionary one and involves some latitude.

As statedby Burrows, J. in Syvenky v Woo, 2003 ABQB 764: 14 Of course, when the situation described in Rule 11(9) exists the jurisdiction to renew the statement of claim is discretionary. Theexercise of the discretion will be influenced by factors such as prejudice to the defendant and carelessness by the plaintiff. In a situationwhere the plaintiff's belief and reliance were brought to an end soon after the statement of claim were issued by advice that liability wasin dispute, the court might well decline to renew the statement of claim.

On the other end of the spectrum, if the plaintiff was induced tobelieve until the last few days before the expiry of the statement of claim that liability would not be contested, I expect the renewalwould be easily obtained. 17 It is also significant to the exercise of the discretion that Mr. Woo suffered no prejudice as a result of Mr. Syvenky's failure to servethe statement of claim in the year. The statement of claim was in fact served, albeit substitutionally after it appeared Mr. Woo wasavoiding service, within 15 months of the issuance of the statement of claim.

If application had been made for a renewal of the statementof claim before the expiry of the first 12 months it would have likely been granted. The service which was effected was within the 3months of the renewal which would have been granted. [45] The Ontario Court of Appeal has also made it clear that the key issue is prejudice to the defendant when dealing withapplications to extend the time for service of an expired statement of claim.

In Chiarelli et al v Wiens (2000) (ONCA), 46 O.R. (3d) 780, Laskin J.A., speaking for the court, said this: 17 The court should not fix in advance rules or guidelines when an extension should be refused. Each case should be decided on itsfacts, focussing as the motions judge did in this case, on whether the defence is prejudiced by the delay. Undoubtedly the delay in thiscase - over six years from the expiry date for serving the claim - was significant, much longer than in most if not all of the decided caseswhere an extension has been granted.

However, the motions judge recognized this delay and still found no prejudice. As I have alreadysaid, I am not persuaded that he erred in making that finding. [46] Laskin J.A. set out five factors to consider, in Chiarelli et al v Wiens. First, the Court should not extend the time for serviceif to do so would prejudice the defendant. Second, the plaintiff bears the onus of demonstrating that the defendant would not beprejudiced by an extension. Third, the defendant has at least an evidentiary obligation to provide some details of prejudice which wouldflow from an extension of the time for service.

In the face of a general allegation of prejudice, the plaintiffs cannot be expected tospeculate on what witnesses or records might be relevant to the defence and then attempt to show that these witnesses and records arestill available or that their unavailability will not cause prejudice. Fourth, the defendant cannot create prejudice by its failure to dosomething that it reasonably could have or ought to have done. Lastly, prejudice that will defeat an extension of time for service must becaused by the delay.

Prejudice to the defence that exists whether or not service is delayed ordinarily is not relevant on a motion to extendthe time for service: Paterson v Lafleche, [2004] OJ No 2029 at para 14. [47] In the case at bar, Reimer has provided no evidence of any real prejudice in permitting the renewal of the Statement of Claim,although its renewal may deprive him of a windfall. As the Plaintiff submits in their brief, Reimer became aware of the Statement ofClaim in November of 2007, three and one half years after the accident.

The agreement between the parties not to use the passage of timeafter the early part of 2008 against either party, means that this is the only period of potential prejudice. Once he became aware of thecause of action against him, Reimer could have begun to take steps to minimize any prejudice. Any failure to do this after November2007, and any resulting prejudice, cannot be considered in determining if the Statement of Claim should be renewed.

Nor is there anyevidence of carelessness by the Plaintiff who relied on an affidavit of service, regular on its face. [48] Under the circumstances, I will exercise my discretion to permit an extension of time for service of the Statement of Claimhere for a period of 30 days from the date of entry of this judgment. The Defendant, will have a further 30 days to file a Statement ofDefence.

Heard on the 24 th day of August, 2012. Dated at the City of Edmonton, Alberta this 27 th day of September, 2012. D.C. Read J.C.Q.B.A. Appearances: Vivian R. Stevenson, Q.C. Duncan & Craig LLP for the Plaintiff Kenneth A. Holmstrom, Q.C. Chomicki Baril Mah LLP for the Defendant _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice D.C. Read _______________________________________________________ Please note that paragraph 12 has been replaced with the below paragraph:

[12] The only parties who appeared on this application were the Applicant Reimer and the Respondent Estate of Evelynn Sanderson ( “ Sanderson Estate ” ). However, the parties filed applications in both actions and agreed that this decision would apply both to action 0603 06167 and to action 0603 06168.