Kamboh v Chambers, 2016 ABQB 711

Court of Queen’s Bench of Alberta Citation: Kamboh v Chambers, 2016 ABQB 711 Date: 20161215 Docket: 1503 07930 Registry: Edmonton Between: Akmla Kamboh and Ahsan Kamboh Plaintiffs - and - Kevin Chambers and Kenneth Romstedt Chambers Defendants _______________________________________________________ Reasons for Decision of S.L. Schulz , Master in Chambers _______________________________________________________ [ 1 ] This matter relates to an extension of time for service of the Statement of Claim filed in this matter.

For the reasons that follow, I extend the time for service for three months from the date of this decision. Facts [ 2 ] The Statement of Claim in this matter was filed on May 28, 2015.

Difficulties arose effecting service within the one year period specified by Rule 3.26. [ 3 ] On May 26, 2016, the Clerk of the Court filed an Affidavit of Karen Carter, sworn on March 15, 2016, and an Affidavit of Rebekah Douglas, sworn on May 25, 2016. [ 4 ] On July 27, 2016, a clerk discovered, on top of a filing cabinet in the Clerk’s office, the affidavits of Karen Carter and Rebekah Douglas, and a draft order for the extension of time. She brought them to my attention on July 28 th , 2016, asking for advice and direction.

There was no explanation available as to what had happened between May 26, 2016 and July 27, 2016. There was nothing on the Court file to indicate if or when an Application Without Notice Desk Form had accompanied the affidavits although it was clear from the affidavits filed that the Plaintiff was seeking an extension of time to serve the Statement of Claim. [ 5 ] A Memorandum dated July 28, 2016 was sent to Counsel. Given that Counsel was from Saskatchewan, he was referred to Rules 3.26 to 3.28 inclusive.

He was advised of the date the affidavits were received by the Masters Office and offered the opportunity to provide an affidavit of explanation. [ 6 ] On August 3, 2016, the Clerk’s Office filed the explanatory Affidavit of Rebekah Douglas sworn on July 28, 2016. The legal assistant deposes that she sent the Affidavits of Attempted Service, an Application Without Notice, and a draft Order to an Edmonton process server on May 25, 2016. The Affidavit attaches an invoice showing a rush filing was made by the process server on May 26, 2016.

The stamp from the Clerk’s Office on the filed Affidavits confirms this date. The legal assistant also deposes that a phone call was

made to the Clerk’s Office on May 25, 2016, and the Clerk advised that once the documents were reviewed, the Court would contact them. When the deponent contacted the Clerk’s Office on July 27, 2016 to get an update on the status of the application, she was advised that there was no application on file. [ 7 ] Presumably it was the July 27 phone call that prompted the action in the Clerk’s Office that brought the matter to my attention initially.

However, the Affidavit of Rebekah Douglas, filed on August 3, 2016, was not brought to my attention until after a faxed letter dated December 7, 2016 was received on that date in the Chambers Office, sending a new draft order. I have not been provided with an explanation for that delay by the Clerk’s office. Analysis [ 8 ] Rule 3.37(1)(

c) allows the Court to grant an extension of time for the service of a Statement of Claim where “special or extraordinary circumstances exist resulting solely... from the conduct of a person who is not a party to the action.” [ 9 ] On the evidence before me, it is clear that an application for an extension of time pursuant to Rule 3.26 was filed before the Statement of Claim expired. The application appears to have been lost or misplaced in the Clerk’s Office through no fault of the Plaintiff or Plaintiff’s counsel. The Clerk is clearly not a party to the action.

I am satisfied that this set of circumstances falls within the meaning of “special or extraordinary” as set out in the rule. Decision [ 10 ] Pursuant to Rule 3.37(1)(c), I hereby extend the time for service of the Statement of Claim in this matter for three months from the date of this decision. [ 11 ] In future, it would be wise for out-of-province counsel to retain a law firm as an agent rather than relying on a process service. Presumably the law firm will understand the urgency of such applications and follow through on the application in a timely manner. Heard on the 15 th day of December, 2016.

Dated at the City of Edmonton, Alberta this 15 th day of December, 2016. S.L. Schulz M.C.C.Q.B.A.