Al-Ghamdi v Her Majesty the Queen, 2017 ABQB 169

Court of Queen’s Bench of Alberta Citation: Al-Ghamdi v Her Majesty the Queen, 2017 ABQB 169 Date: 20170310 Docket: 1404 00667 Registry: Grande Prairie Between: Dr.

Mohammed Al-Ghamdi Respondent Plaintiff - and - Her Majesty the Queen In the Right of Alberta, Alberta Health Services, Chris Eagle, Verna Yiu, Rollie Nichol, Kevin Worry, James Pope, Albert Harmse, Peter Miles and his partners in Grande Prairie Surgeons Office, Richard Beeknian, Liam McGowan, Bryn Alexander Watson, Joseph Sendziak, Raubenheimer Denkema and his partners in the Grande Prairie Orthopaedic Surgeons Group, Wynand Wessels, Sandra Corbett, Joan Libsekal, Sean Chilton, Marie Johnson, Rita Young, Gail Coristine, Tracey Rice, Chris Bowes, Don Hunt, David Dawson, Doug Perry, Bryce Henderson, Carol Rowntree, Oluwatosin Akindapo Akinbiyi, Scott Wesley Wiens, Saifee Rashiq, Ivan Bernardo, Miller Thompson Law Firm, Corne Booysen, Alika Lafontaine, Chantelle Peter, Carin Strydom, Robert K.

Staples, Ronald St.

Gremaine, Brian Muir, Brent Peipgrass, Mary Nasdekin, Theresa Jordan, Michelle Derewianko, Kathy Miller, Avisha Narnaware, Amber Cheveldave, Ashley Much, Belenda Parsons, Cheryl Mayer, Cindy Wendorf, Deb Magusin, Ferne Lacey-Short, Jill Keddie, Denise Giebelhaus-Graw, Jill Lynk, Sheila Dorschied, Alan Hansen, Jody Fredrickson, Doug Parsons, Beatrice Scott, Melissa Thompson, Michelle Tolton, Carol Uhryn, Kerianne Dunlap, Atara Hustler, Stephanie Malekoff, Barb Vanachte, Desire Pullishy, Ginger Krause, Heather Halwa, Nichole Ressler, Shane Ray, Shawindra Parmar, Wanda Hobbs, Phyllis Pyke, Daniella Mueller, Sheila Dykhuizen Vickie Kaminski, Deb Gordon, Holly Liuden, Manish Joshi, Bonny Nelson, Cheryl Meriot, William Hondas, Karen Espersen, Jason Becker, Karen Bouman, John Doe and Jone Doe Applicant Defendants _______________________________________________________ Reasons for Decision of the Honourable Mr.

Justice S.D. Hillier _______________________________________________________ Introduction [ 1 ] Multiple defendants in this action have been noted in default in circumstances which I will review. They all apply to set aside the noting in default and permit the filing of their Statement of Defence. Three law firms represent these Applicants: Field LLP represents 72 of the Applicants, as listed in the

Schedule to their Application;

Carbert Waite LLP represents Dr. Henderson; Gowling WLG (Canada) LLP represents Drs. Staples, Peter, Strydom, Akinbiyi, Lafontaine, Booysen, and Narnawara. [ 2 ] Dr. Al-Ghamdi is a self- represented physician and a member of the Law Society of British Columbia. [ 3 ] In addition to the applications to set aside the noting in default, Gowling seeks an order under r 3.28 to prohibit any further proceedings by Dr. Al-Ghamdi against its clients because of failure of service.

I have declined to address that form of relief for reasons expressed to counsel as I will reconfirm briefly in this decision. [ 4 ] Field and Carbert filed their applications to set aside the notings in default over a year ago. Gowling also attempted to file their application, sending the application to the Court on January 14, 2016, but the Clerk of the Court would not permit filing because I had been appointed as case management judge. Mr. Warren wrote Dr. Al-Ghamdi on January 20, 2016, indicating his intention to apply to set aside the default notices and included the unfiled application.

The application was formally filed January 6, 2017 in compliance with court direction. [ 5 ] In the course of Case Management a number of pressing issues have pre-empted a formal hearing of these matters until now. The parties a decision in advance of further applications for

summary disposition which are scheduled to be heard by Justice Goss outside of Case Management. Preliminary Matters Production of Dr. Henderson’s email [ 6 ] At the outset of this hearing, I provided my ruling that Dr. Henderson was not required to produce an e-mail dated November 10, 2015 and copied to him by a colleague writing to a lawyer for advice. Dr. Al-Ghamdi speculated it may have enclosed a copy of the Statement of Claim. My reasons remain as provided orally, but in the context of this written decision provided at Dr.

Al-Ghamdi’s request, I repeat that, whatever its content and whether protected by privilege or not, the e-mail was not sent to Dr. Henderson with any intent by the sender to affect Dr. Henderson’s legal rights. [ 7 ] As the Court of Appeal noted in Zahmol Properties Ltd. v. Calgary (City) , 2012 ABCA 89 at para 7 , leave to appeal ref’d [2012] SCCA No 235, mere knowledge is not enough to constitute service: Service is a specialized form of notice.

While "notice" is sometimes used as a synonym for "knowledge", in this context notice encompasses the conveying of knowledge or information with intention to affect legal rights . (Emphasis added) [ 8 ] See also Sandhu v MEG Place LP Investment Corp , 2012 ABCA 266 (at para 18 ): In order to demonstrate proper service of the disallowances of the claims, it must be shown that the respondents received notice of the disallowances of their claims, in a context that made it clear that their rights were being engaged . (Emphasis added) [ 9 ] At most, then the email may have alerted Dr.

Henderson to the claim, which he has acknowledged in questioning already. As such, it is of no assistance in answering the issues as to setting aside the noting in default. Alleged late filing of application materials [ 10 ] The second preliminary matter consumed a great deal more time. Dr. Al-Ghamdi argued at the outset that all applications should be dismissed for failure to comply with mandatory time limits. As part of case management, deadlines were set for filing and service of applications, affidavits and briefs by 4 pm January 6, 2017.

The deadlines were communicated by the Court through Case Management Counsel December 14, 2016 and confirmed by the Special Chambers Co-ordinator on December 19, 2016. [ 11 ] Dr. Al-Ghamdi filed an Affidavit without any fiat on March 1, 2017, in which he deposes he did not receive a filed Brief from Gowling until March 1 st and that Brief has no Court date stamp on it. He further deposes that Field sent an email with the Application and Brief on February 24, 2017, with court fax transmittals for January 6 at 15:25 and response on January 9 at 3:31 pm, in non- compliance with the Court order.

His Affidavit makes no mention of any materials from Carbert. [ 12 ] By contrast, Dr. Al-Ghamdi’s “Factum”, filed January 27, 2017, states: We have received the application from Field and Cowling (sic), but they did not specify exactly which defendant or defendants is/are bringing the application. We received the application of Dr. Henderson and affidavit. We did not receive any factum/memorandum from other defendants’ counsel.” [ 13 ] Dr.

Al-Ghamdi argues that he has been prejudiced in his preparation, that all parties need to be bound and measured by the same ruler to adhere to deadlines, and that he was not given timely advice as to the constraints for access to electronic versions placed in a drop box. [ 14 ] It is unnecessary to repeat the meticulous review of the records by each counsel for the Applicants. I confirm my ruling that

the preliminary objection lacks merit. Deadlines set in case management are intended to provide: (1) structure that will govern the parties’ expectations and responsibilities, (2) time to prepare and properly respond and (3) efficient standards for work priorities, all with an objective of facilitating access to timely decisions of the court on substantive matters. [ 15 ] I am satisfied that materials were sent by each counsel to Dr. Al-Ghamdi as required.

Minor issues with date stamps, fax filing in Grande Prairie, and his apparent failure to make timely access to the drop box for large attachments do not in the least detract from this conclusion. Put at its best, the objection is not that filing of the materials was untimely but that virtually concurrent provision of copies to Dr. Al-Ghamdi could not constitute “service” because there was no court date stamp and he could not be sure that the materials were identical.

He does not point to any discrepancy, only that it is an unfair burden for him to be obliged to cross check. [ 16 ] I find this assertion disingenuous for at least three reasons as relates to Field’s material: 1) Dr. Al-Ghamdi did not even attempt to access the electronic version for nearly six weeks after the Brief and Affidavit were provided to him on January 6 which explains his difficulties with the drop box; 2) He was provided with the filed hard copies on January 10 and he personally signed for them on January 11, 2017.

When he denied receipt of hard copy on February 15, he was immediately sent the Delivery confirmation from January with his signature; 3) His January 27 “Factum” says he had received the application, but was unsure who they were representing, despite the list of 72 names in

Schedule A of the application. [ 17 ] Carbert’s application was filed December 15 and served December 24, 2015. Dr. Henderson’s Affidavit was filed January 13 and served January 14, 2016. The Brief was filed on January 6, 2017 and e-mailed to Dr. Al-Ghamdi that same day. A hard copy was delivered to Dr. Al-Ghamdi on January 12, 2017. [ 18 ] Counsel for Mr. Henderson relied on Rule 1.2(2) urging the court to examine the real issues and not arguments raised latterly to deflect from whether noting in default was proper and whether Dr.

Henderson ought to be allowed to defend the allegations against him. [ 19 ] Gowling asserts that it only became aware of a possible complaint about alleged lack of service from Dr. Al-Ghamdi’s Affidavit, filed without fiat on February 27, 2017. A late response Affidavit from Gowling’s assistant, Ms. Keegan (filed March 1, 2017, similarly without fiat), confirms as well that their Brief was sent electronically on January 6, 2017 because Dr. Al-Ghamdi did not respond to an earlier request about simply forwarding hard copies after the materials were filed which was at 12:57 that day.

Counsel did confirm that hard copies remained on their file, but that was inadvertent and it only recently came to their attention that Dr. Al-Ghamdi had never requested the extra hard copies. [ 20 ] The explanations in each case were more than sufficient to conclude that Dr.

Al-Ghamdi was fully informed on a timely basis, he had time to prepare and respond, and that any lack of efficiency was not a function of the conduct of opposing counsel. [ 21 ] As to measuring technical compliance by the same ruler, I note the following to which none of the Applicants took any objection, excepting the Keegan Affidavit noted above, filed March 1, 2017 in response to Item 3 below: 1) On January 27, 2017 Dr.

Al-Ghamdi filed a one page “Factum” as earlier referenced; 2) On February 24, 2017, he filed a 10 page Brief with Appendices A to G comprised of over 70 pages; 3) On February 27, 2017, he filed an Affidavit with Exhibits A to I comprised of over 70 pages; 4) On March 1, 2017, he filed an Affidavit with Exhibits A to D comprised of 6 pages. [ 22 ] I note also that Dr. Al-Ghamdi filed a further affidavit on March 6, 2017, dealing with service to various defendants. [ 23 ] For completeness I note that 1) the March 1, 2017 Keegan Affidavit referenced above was made in direct response to Dr.

Al-Ghamdi’s supplementary material; 2) Field also assembled materials in response, much of which was part of the vast material already; the 18 page package enabled the court to review the chronology of events both related to late 2015 and service. Counsel undertook to file an affidavit, which has been received. [ 24 ] The Co-ordinator did notify the parties that late filing of materials could result in delay.

Her letter stated: Note: Failure to provide any required information to the Court may result in delays or rescheduling . (Underlined emphasis added) [ 25 ] This was not a direction that the applications could be dismissed as Dr. Al-Ghamdi argued. Despite the late assembly of submissions, I am determined to provide substantive answers to the various applications to open up the Noting in Defaults and allow defences to be filed. [ 26 ] Finally, I note that the parties understood that Dr. Al-Ghamdi would be filing his own application and materials dealing with service on January 6, 2017.

He initially sought leave to bring that application on September 22, 2016. [ 27 ] On September 30, 2016, Case Management Counsel, on my behalf, responded to this request to all parties, advising Dr. Al- Ghamdi to provide the court and the other parties with a draft application and affidavit. Defence counsel were to provide their response

to such draft application. The parties were also to state their positions whether a plaintiff’s application should before me as Case Management Judge or before the justice assigned to hear the

summary dismissal applications. From the responses, the court concluded that all matters in regards to service would be heard at the same time and imposed deadlines on all applications and responses. [ 28 ] However, although the Defendants all filed materials in their applications, as I have reviewed, Dr. Al-Ghamdi did not file his application or any materials by January 6, 2017. On January 12, 2017, Case Management Counsel wrote reminding him of the missed deadline for filing and received no response. At my unilateral direction Case Management Counsel wrote further to Dr.

Al-Ghamdi on January 18, 2017, with a reminder January 20, 2017 to extend the deadline for his application and materials to January 23, 2017. Remarkably, he neither filed the application nor materials in support of either substitutional service or deeming service good and sufficient. He proffered no explanation for failing to submit the application. Having made no reply to various reminders from the Court, it may be fairest to assume that he simply concluded for himself that no further applications were necessary.

Facts [ 29 ] The following chronology captures the most salient or important aspects as inform of the manner in which Service of Proceedings has been addressed. Dr. Al-Ghamdi filed the initial Statement of Claim in this Action on November 20, 2014 against Alberta Health Services (AHS) and 21 other named defendants. He did not serve any of the named parties with this document. He filed an Amended Statement of Claim, adding 75 additional individual defendants, on November 2, 2015. [ 30 ] On November 16, 2015, Dr.

Al-Ghamdi swore an affidavit in support of an ex parte application for substitutional service and to extend the time for service of the original Statement of Claim. Attached as exhibits to the affidavit were Registered Mail labels identifying the addressees of registered mail. In general most of the affidavits read as follows: I, Dr. Mohammed Al-Ghamdi, of Grande Prairie, Alberta, AFFIRM THAT: 1. I have personal knowledge of the following information, except where I state that it is based on information from another person, in which case, I believe that information to be true. 2. I am 18 years of age or older. 3.

On [date filled in by Dr. Al-Ghamdi], I served [here, the name of the Defendant was filled in] with a copy of X the following documents, which are filed with the Court: • STATEMENT OF CLAIM, filed ON NOVEMBER 20, 2014 • AMENDED STATEMENT OF CLAIM filed November 2, 2015 4. I served the document(

s) listed above using the following method of service: (Recorded mail) X by causing a copy of the documents to be sent by recorded mail to [here the name of the Defendant and the address of service were inserted] Service was effected on [same date as filled in above], as is evidenced by the acknowledgment of receipt, signed by [name of signer on the acknowledgement filled in] on behalf of the individual to whom it is addressed, which is attached and marked as Exhibit “A” to this Affidavit. [ 31 ] My review of the affidavits of service reveals that only three defendants acknowledged personal receipt of the documents: Denise Giebelhaus-Graw, Peter Miles, and Desire Pullishy, all represented by Field.

All other acknowledgements were either signed by someone other than the addressee or the space for acknowledgement stated “REFUSED”. [ 32 ] On that same day, November 16, 2015, Dr.

Al-Ghamdi appeared in Grande Prairie regular chambers in front of Justice Tilleman, introduced himself as a member of the Law Society of British Columbia (Transcript, p 1, ll 29-30) and stated (Transcript p 6, ll 35 – p 7, ll 1-2): Yeah, we – we sent registered mail to all of them, and it went to the hospital , it doesn’t go to them directly, to – received by the hospital, signed by the hospital as received, then the hospital will deliver it to them, so we have a problem to confirm who – which one is actually is receiving it from after the hospital signed receiving it, the main mail—mail – mail service in the hospital.

So that created a difficulty for us actually to confirm which one of them actually received the registered mail we sent to them. That would make it difficult for us to pin point who – which of the physician and the nurses received their – been perfectly served or not. [ 33 ] Later he says (Transcript p. 7, ll 34-26): But as I’ve said, the difficulty we have, we cannot confirm which one is actually receiving it once the hospital signed receiving the registered mail. [ 34 ] And later (Transcript p. 8, ll 17-21): And we cannot confirm which one of them actually received the registered mail we sent to them.

We sent the registered mail to their address in the hospital and we understand its go to the main mail service in the hospital, and they signed receiving it, and they deliver it

to then the people, but we are not sure if the process inside the hospital was – this email was delivered to the individual or not, or they’re avoiding it. [ 35 ] Justice Tilleman expressed concerns about the lack of specificity in the affidavit and about privacy concerns regarding the proposed service via Facebook, among other issues. He ordered Dr. Al-Ghamdi to provide a supplementary affidavit. He further ordered Dr.

Al-Ghamdi to give notice of the application to the defendants who had been served or those whose location he knew of, as well as the relevant law firms, Alberta Health region, the hospital and Her Majesty. Justice Tilleman also refused the extension of the time for service of the initial Statement of Claim. [ 36 ] In the transcript, the Court Clerk informs Dr.

Al-Ghamdi that he can request that LinC prepare the Order and Justice Tilleman said the Clerk could sign it. [ 37 ] The wording of the Order provides: The Applicant shall file a Supplemental Affidavit setting out how certain defendants were served successfully or not served. The Plaintiff shall give Notice of the application to the defendants who were already served in some fashion: Law Firms, Lawyers, Her Majesty the Queen, Grande Prairie Hospital and the relevant Health Region. [ 38 ] Dr. Al-Ghamdi did file a Supplemental Affidavit promptly but otherwise ignored the directions of the court.

There is no evidence that Dr. Al-Ghamdi provided notice to any of the defendants of the application, of the disposition by Justice Tilleman, nor did he pursue that application further. His explanation in this application was he did not think it was necessary to comply with court directions as he felt circumstances changed beginning that very afternoon. [ 39 ] A week later, on November 23, 2015, Mr. Faulds of Field wrote Dr.

Al-Ghamdi (sent by fax and regular mail), to indicate that the firm had been made aware of the Statement of Claim and the Amended Statement of Claim, noting that the Amended Statement of Claim named 90 or more defendants. Mr. Faulds stated that the Field law firm would be assuming the defence of Alberta Health Services once they were properly served; he also indicated that the firm would undertake the defence of most of the other defendants associated with AHS once they were properly served.

He went on: Given the very large number of defendants, we expect it will take some time to sort out the issues of service and representation, determine the appropriate response on behalf of our various clients and assemble the information required to respond. In the circumstances we hereby request your undertaking that you will not take further steps against any of the defendants at least until January 30, 2016. [ 40 ] In the same letter, Mr. Faulds indicated that the parties intended to seek the appointment of a case management judge, given the complexity of the action and the number of defendants. [ 41 ] Dr.

Al-Ghamdi did not respond to this correspondence. [ 42 ] On November 27, 2015, counsel for Drs. Strydom, Booysen, and Lafontaine advised Dr. Al-Ghamdi by letter sent by fax that Gowling was representing these physicians and asked that other than proceeding with service, he take no further steps against those defendants without providing them with reasonable notice. [ 43 ] Dr. Al-Ghamdi did not respond to this letter either. [ 44 ] On December 3, 2015, Mr. Faulds wrote Dr. Al-Ghamdi again (by fax and regular mail), seeking a response to his earlier letter. Also on December 3, 2015, counsel for Dr. Peter wrote Dr.

Al-Ghamdi (sent by fax) advising that Gowling would be acting for him and asking that the plaintiff take no further steps except in regards to service without notice to them. [ 45 ] On Friday December 4, 2015 Dr. Al-Ghamdi filed numerous Affidavits of Service in regards to approximately 83 defendants. He then required the Clerk to note in default 77 of the defendants: [based on the Notices, there were 19 filed at 1:45, 10 at 2:10, 1 at 2:20 and 47 at 2:55 pm.] [ 46 ] Dr. Al-Ghamdi replied by email to Mr. Faulds’ second letter at 8:26 pm that night, saying only: Who are your clients?

I can not communicate with you based on that you may be retained by someone. Although he had been advised that Field had instructions from Alberta Health Services, he made no reference to, nor did he reconcile this position with, the directions of Justice Tilleman. [ 47 ] On Monday December 7, 2015, Mr. Faulds by letter sent by fax and regular mail, advised Dr. Al-Ghamdi who would be acting for which defendants and again asked for an undertaking to not take any further steps in the action until January 30, 2016. [ 48 ] Dr.

Al-Ghamdi responded by email that night saying simply: Thanks for today fax; we cannot agree with your time proposal. [ 49 ] Inexplicably, earlier that same day Dr. Al-Ghamdi had appeared ex parte before Justice Simpson in morning chambers to obtain default judgment against the defendants he had noted in default. Again, Dr. Al-Ghamdi introduced himself to Justice Simpson as a member of the Law Society of British Columbia (Transcript p 28, ll 2-3) and indicated the relief he was seeking. He did say that some of the defendants had been served and had filed defences. [ 50 ] Dr.

Al-Ghamdi failed to advise Justice Simpson that:

1) he had previously appeared before Justice Tilleman seeking substitutional service and to extend time for service; 2) his applications were refused and the terms of the Order issued, including specifically that he give notice to counsel; 3) he had received correspondence from counsel for many of the defendants, to advise of their involvement and requesting that no steps be taken without notice. [ 51 ] Justice Simpson refused the application, saying that it should not be dealt with in morning chambers and should go over to trial. Dr.

Al-Ghamdi indicated that he was seeking judgment because (Transcript p 34, ll 24-25): Notice in defence (sic), it can be set aside much easier than judgment. [ 52 ] On December 8, 2015 Dr. Al-Ghamdi filed affidavits of service affecting several more defendants and noted them in default. Again on December 9, 2015 he filed further affidavits of service and noted these defendants in default the next day. Dr. Henderson was one of those defendants, and he had only received the statement of claim seven days before, on December 3, 2015. Dr.

Henderson tried to file his defence within the prescribed 20 days but the clerk declined to accept it because of the noting in default. [ 53 ] Applications to set aside were then filed and adjourned by the appointment of case management. [ 54 ] On October 25, 2016, before the expiry date to correct any deficiencies in service of the Amended Statement of Claim, the defendants’ counsel offered a with prejudice settlement to Dr. Al-Ghamdi. The defendants would agree to a Consent Order that opened up the Noting in Default, deemed service to be effective and allowed prompt filing of the statements of defence. Dr.

Al-Ghamdi refused the offer. He did not renew any application to extend time for service, nor did he ever apply to deem service good and sufficient. Analysis Application to open the default notices [ 55 ] All three counsel have argued that the default notices should be opened and they be allowed to file defences. I do not find it appropriate to deal with Gowling application under r 3.28 for reasons I will address at the end. The rules [ 56 ] Dr.

Al-Ghamdi notes that commencement documents can be served by recorded mail, and that under r 11.2 service is not invalid simply because the addressee refused to accept the mail, that the addressee returns the mail, the addressee refuses to accept delivery of recorded mail, or the addressee is no longer at the address. [ 57 ] I note here that r 11 .2 is a general provision, while r 11.5 is the more specific. R 11.5 expressly says that service of commencement documents by recorded mail is effected when the addressee acknowledges receipt.

Therefore, the r 11.2 provisions cannot validate service that has not occurred as prescribed. [ 58 ] Dr. Al-Ghamdi also refers to the “presumption of service” provision in s 23 of the

Interpretation Act . That

section applies “if an enactment authorizes or requires a document to be sent, given, or served by mail” but expressly excludes “double registered or certified mail”. [ 59 ] Further, r 1.8(

c) provides that s. 23 of the

Interpretation Act does not apply to service of documents under the rules. [ 60 ] Finally, s 24 of the

Interpretation Act (which is not excluded from application to the Rules of Court ) says : A reference in an enactment to double registered mail, single registered mail, registered mail or certified mail includes any form of mail for which the addressee or a person on behalf of the addressee is required to acknowledge receipt of the mail by providing a signature . [ 61 ] Recorded mail is defined in the Appendix to the Rules of Court: “recorded mail” means a form of document delivery by mail or courier in which receipt of the document must be acknowledged in writing as specified in

Part 11; (Emphasis added) [ 62 ] This definition is consistent with s. 24 of the

Interpretation Act, RSA 2000, c I-8 since r 11.5 in

Part 11 of the Rules of Court provides that service on an individual by recorded mail is effected by the signature of the addressee. Therefore, both the Rules of Court and the

Interpretation Act provide that service by registered or recorded mail is effected when the addressee acknowledges receipt. The

Interpretation Act further provides that a person may “sign on behalf of the addressee”, but the Rules of Court do not. I interpret that the more specific provision governs, and that therefore the Rules of Court do not permit acknowledgement by another person on behalf of the representee. [ 63 ] The Rules of Court have their own presumption for service by recorded mail – s. 11.22, but that

section expressly excludes commencement documents. [ 64 ] I conclude that these provisions, read together, contemplate that service by recorded mail can only be effected by acknowledgement of receipt by the addressee. This does not mean, however, that service could not be validated by the court in the right

circumstances in an application under r 11.27. As the Court of Appeal has said, service is a question of fact ( Thompson v. Procrane Inc. (c.o.b. Sterling Crane), 2016 ABCA 71 , at para 12 ) and not a “magical or formalistic ritual” ( Sandhu , at para 19 ). Such an application is not before me, but I will consider whether service was effected in some other manner when exercising my discretion and considering the overall fairness of the circumstances. [ 65 ] Dr. Al-Ghamdi raises a variety of objections to the applications that I will address in turn. The affidavits of service [ 66 ] Dr.

Al-Ghamdi points to the affidavits of service as proof that all the defendants were served. Many of the affidavits of service are problematic. [ 67 ] As noted, most of the Affidavits of Service were not acknowledged as received by the addressee. The following are examples of some of the service problems. Service on Dr. Sendziak [ 68 ] An Affidavit of Service was filed in regards to Dr. Sendziak on December 4, 2015. This was the affidavit of service relied upon to note him in default on December 4, 2015.

That affidavit reads: Affidavit of Service AFFIDAVIT OF Dr Mohammed Al-Ghamdi Affirmed on December 4, 2015 [note November was typed in and crossed out and December written by hand and initialled; it is unclear who initialled it] I, CAMILLE TORBEY , of Grande Prairie, Alberta, SWEAR/AFFIRM THAT: 1. I have personal knowledge of the following information, except where I state that it is based on information from another person, in which case, I believe that information to be true. 2. I am 18 years of age or older. 3.

On Noveember [1] 9, 2015, I served DR JOESPH SENDZIAK with a copy of: X the following documents, which are filed with the Court: • STATEMENT OF CLAIM, filed ON NOVEMBER 20, 2014 • AMENDED STATEMENT OF CLAIM filed November 2, 2015 4. I served the document(

s) listed above using the following method of service: (PERSONAL SERVICE) X by giving the document to Dr. Torbey who delivered the document(

s) to and leaving them with Joesph SENDZIAK at HIS HOME THAT IS LOCATED NEAR or north SEXSMITH ALBERTA that is located at Ranger Road 60. (Underlining emphasis added) [ 69 ] Dr. Al-Ghamdi then affirmed the affidavit before a Commissioner for Oaths. [ 70 ] I note the following problems with the affidavit: 1) the discrepancy between the initial paragraph, stating that Camille Torbey is swearing the affidavit, and the Jurat, which Dr. Al-Ghamdi affirms; 2) the paragraph about actual service is, at best, hearsay, and 3) the inconsistency between the first paragraph and subsequent paragraphs.

These factors render the reliability of the affidavit questionable. [ 71 ] On January 26, 2017, Dr. Torbey swore an Affidavit of Service saying that she personally served Dr Joesph Sendziak on November 9, 2015 “delivering the document(

s) to and leaving them with Dr. SENDZIAK at HIS HOME THAT IS LOCATED NEAR or north SEXSMITH, ALBERTA that is located at Ranger Road 60.” This affidavit appears to have been properly sworn/affirmed by Dr. Torbey, but it was not available to support a default notice filed over a year earlier. Drs. Piepgrass and McGowan [ 72 ] Drs. Piepgrass and McGowan were the subject of service by Recorded Mail. Dr. Al-Ghamdi’s affidavit of Service for Dr. McGowan affirms Dr. McGowan was served by recorded mail on November 10, 2015, but a Mr. Stoner acknowledged receipt of the documents on that date, not Dr. McGowan. Dr.

Al-Ghamdi’s Affidavit of Service for Dr. Piepgrass affirms that Dr. Piepgrass was served on November 12, 2015, but again Mr. Stoner acknowledged receipt of the documents on that date, not Dr. Piepgrass. [ 73 ] There are also affidavits of personal service on these two doctors, but these were not sworn and filed until January 26, 2017

when Dr. Torbey swore two additional Affidavits of Service. She indicated that on November 19, 2015 she personally served Drs. Piepgrass and McGowan at the Queen Elizabeth II Hospital at 10409 98 Street, Grande Prairie Alberta. [ 74 ] Both Dr. Piepgrass and Dr. McGowan were noted in default on December 4, 2015, that is 15 days after the personal service. Even if the Affidavit of Service by Dr. Torbey had been filed to support the default notice, the noting in default did not await the prescribed 20 days. Dr. Beekman [ 75 ] Dr. Beekman [2] refused service of the registered mail sent to him.

The Affidavit of Service affirmed and filed by Dr. Al- Ghamdi on December 4, 2015 reads: 4. I served the document(

s) listed above using the following method of service: (Recorded mail) X by causing a copy of the document(

s) to be sent by recorded mail to RICHARD BEEKAN AT 928, 9909 102 ST GRANDE PRAIRIE T8V 2V4 Alberta Canada. Service was effected on 09 November, 2015, as is evidenced by the acknowledgment of receipt, signed by REFUSED on behalf of the individual to whom it is addressed, which is attached and marked as Exhibit “A” to this Affidavit. 5. I have the following other information regarding service of the document(s): Richard Beekman was notified about the packages and he refused to accept it. He was then later served in person on November 18, 2015 at 928, 9909 102 ST GRANDE PRAIRIE T8V 2V4.

H e [strikethrough of the “e”]is also a partner of Dr. Miles and the partnership and Dr. Miles were served on November 9, 2015. [the changes were initialled by Dr. Al-Ghamdi] (underlined emphasis added) [ 76 ] Dr. Beekman was noted in default on December 4, 2015 which was only 16 days from the date of alleged personal service. I note also that there is no indication in the affidavit of who served him in person.

Service acknowledged by the addressee [ 77 ] Of all the Applicants noted in default and allegedly served by recorded mail only three personally acknowledged service on the dates set out in the Affidavits of Service: Denise Giebelhaus-Graw (November 10, 2015); Peter Miles (November 9, 2015) and Desire Pullishy,. (November 13, 2015). They were noted in default on December 4, 2015, more than 20 days after acknowledging receipt of the documents. Conflicting representations to the Court [ 78 ] The Applicants have all argued that there is a fundamental problem with how Dr.

Al-Ghamdi could purport to swear affidavits of service in light of his repeated description of problems represented to Justice Tilleman and the Order of the Court that followed from the problems which he described. I do not accept Dr. Al-Ghamdi’s assertions, made during oral argument, that all his concerns essentially evaporated after his appearance before Justice Tilleman because he started to hear that “everyone” was talking about the law suit, and therefore everyone knew about it. The concerns he expressed to Justice Tilleman are the same concerns that continue to plague the issue of service.

As late as the fall of 2016, Dr. Al-Ghamdi was considering whether to make an application to deal with service problems. [ 79 ] The problems of recorded mail service are well known.

In Stevenson & Côté , Civil Procedure Handbook (Edmonton: Juriliber, 2017) at p11-7, the authors note: “The only really reliable service of originating documents upon an individual is personal service, probably by an experienced process server.” [ 80 ] Overall the problems with service are not reconciled by the Affidavits of Service either filed in conjunction with the notings in default or more latterly in response to the applications to open up. Extensions of time [ 81 ] If his affidavits do not suffice to avoid opening up, Dr.

Al-Ghamdi points to his earlier offers to extend deadlines for defences, presumably to support his current opposition to the filing of defences. He says that on December 8, 2015 (by email at 3:43 pm) he granted an extension to file the statements of defence to December 11, 2015 (later extended to December 18), and refers to Ex S and W in Ms. Groves’ affidavit. Dr. Al-Ghamdi fails to mention that his offer excluded the physicians. He dismisses as unreasonable the request of Mr.

Faulds that he take no further action until January 31, 2016, but does not say why the extension needed to be confined to such a short time frame, much less what prejudice would result from an extension for a reasonable period of time. At no time does Dr. Al- Ghamdi allow the matter to be settled by the court. [ 82 ] Dr. Al-Ghamdi asserts that the defendants who failed to accept the extension or to file the statement of defence “did so at their peril”.

He is correct only to the extent that considerable time and expense have been incurred to have the court redress what should have been sorted out months ago in the best interests of civil process.

[ 83 ] Dr. Al-Ghamdi’s actions in pursuit of the noting in default failed every measure of fairness and good faith. He noted defendants in default on December 4, 2015, (the day after Mr.

Faulds’ second letter to him), again on December 8, 2015 (the date he offered to extend the time limit briefly for a few parties) and a third time on December 10, 2015 (prior to the expiry of his limited offer of extension, but subsequently extended). [ 84 ] Given the complexity of the file, the relief claimed, the numbers of defendants and counsel, and the objective likelihood of case management (as was already assigned to other actions commenced by Dr. Al-Ghamdi), a request for extension to file defences by January 31, 2016 was a reasonable and professional request.

Stevenson & Côté at 3-53 note: It is very common for defence lawyers to get from the plaintiff’s lawyers an extension of time to file and serve a statement of defence. Indeed, lawyers for plaintiffs should not refuse such requests without good reason. The mere impatience of the plaintiff is not enough reason to refuse an extension. [ 85 ] This proposition was reinforced by the Court of Appeal in Moose Mountain Buffalo Ranch v Greene Farms Drilling Ltd , 2010 ABCA 56 .

The Court upheld the Chambers Judge’s decision to set aside the default notice, filed one minute before the Statement of Defence and further agreed with the Chambers Judge that the Plaintiff was relying on the “thinnest of technicalities”, citing (para 10): ... Rule 4 of the Law Society's Code of Conduct which states: "A lawyer must agree to reasonable requests by another lawyer for extensions of time ...", and to Commentary 4, which gives as an example of a reasonable request for an extension of time: "a lawyer who has received instructions to defend an action on the eve of the deadline for responding".

Timeliness of these applications [ 86 ] Dr. Al-Ghamdi takes the further position that the defendants did not move in a timely fashion to set aside the noting in default, choosing instead to “stall” the process by seeking the appointment of a case management justice. From my review it is clear that the parties sought to set aside the default notices soon after they learned of them: 1. Field LLP filed an application for extending the time for filing a statement of defence on December 9, 2015, immediately after Dr. Al-Ghamdi’s December 8 email refusing to extend the time. Although by this time, Dr.

Al-Ghamdi had noted most of the defendants in default, he did not indicate this to Mr. Faulds. On December 10, 2015, Field first learned of the default notices and amended its December 9, 2015 application to include setting aside the default notices and filed the amended application on December 11, 2015. 2. Dr. Henderson’s counsel learned Dr. Henderson was noted in default on December 11, 2015 (a Friday) when he attempted to file a statement of defence to the statement of claim received on December 3, 2015. He applied to set aside the noting in default on December 15, 2015 (the following Tuesday). 3.

Karana Keegan, Legal Assistant for Mr. Warren of Gowling deposed in her affidavit, sworn and filed January 6, 2017 , that Mr. Warren learned that many of the defendants had been noted in default on December 11, 2015, and later he learned that some of his clients were noted in default. I note here that Mr. Warren had written Dr. Al-Ghamdi on November 27, 2015 and December 3, 2015 that he was acting for Drs. Styrdom, Booysen, Lafontaine, and Dr. Peter, and that he was seeking the customary undertaking to not take any further steps without notice. Dr. Al-Ghamdi did not reply to either letter.

On January 14, 2016 , Mr. Warren applied to set aside the default notices, but his application was rejected by the Clerk for filing because the file had been placed under case management justice. By letter dated January 20, 2016, Mr. Warren of Gowling advised Dr Al-Ghamdi that he intended to apply to open up the default notices, and provided him with the unfiled copy of the application. Gowling’s application was formally filed on January 6, 2017 as directed in case management. 4.

The delay in scheduling these applications was impacted by a number of factors, including: the volume and complicity of related actions, problems with the Records, the application for interlocutory relief, the application for recusal and appellate reviews. [ 87 ] Dr. Al-Ghamdi argues that each application to set aside the defaults should have been brought within 20 days of learning of the default notice. He cites r 9.15, which provides: 9.15(1) On application, the Court may set aside, vary or discharge a judgment or an order, whether final or interlocutory, that was made

a) without notice to one or more affected persons, or

b) following a trial or hearing at which an affected person did not appear because of an accident or mistake or because of insufficient notice of the trial or hearing.

(2) Unless the Court otherwise orders, the application must be made within 20 days after the earlier of

a) the service of the judgment or order on the applicant, and

b) the date the judgment or order first came to the applicant’s attention.

(3) The Court may, on any terms the Court considers just ,

a) permit a defence to be filed by a party who has been noted in default ... (Emphasis added) [ 88 ] First, noting in default is not a judgment or an order; it is not made by a judge or master, but is merely an administrative notation by the Clerk of the Court. The 20 day limit in this rule does not apply to noting in default.

[89] Further, even if it did apply, the rule expressly says “Unless the Court orders otherwise”, which permits the Court to extendthe time limits in the fair exercise of its discretion. [90] Finally, the rule permits “a defence to be filed on any terms the court considers just”.

The case law dealing with setting asidenoting in default and permitting a defence to be filed, includes consideration of how promptly the application was made as just one factorin the exercise of the court’s discretion [91] In any event, Field and Carbert, on behalf of their clients, brought the application to open the default within days of learningof the default notices. I find that Mr. Warren advised Dr. Al- Ghamdi in a reasonable period of time that he would be applying to openthe defaults. This finding takes into account that Dr.

Al-Ghamdi failed to respond to Gowling’s letter November 27, 2015 and December3, 2015. Having been advised of the position of these defendants in common with virtually all named parties that they would bedefending the claims, Dr. Al-Ghamdi cannot and does not allege any prejudice in respect of the timing of Mr. Warren’s confirmation ofinstructions. Presumptive service [92] Dr. Al-Ghamdi revisits the issue of service in reliance on the affidavits of service, and that none of the defendants have swornaffidavits that they were not served. Dr.

Al-Ghamdi argues that when the defendants make an application to set aside service, they havethe onus to prove they were not served and must lead evidence that they were or were not served and by what method they were servedthat is alleged to be defective. [93] I note again that the application before me is to set aside the default notices, not to set aside service, nor, for that matter, todeclare service to be good and sufficient. There are possible repercussions to making such findings that may finally decide the matter, forexample if I were to set aside service.

As noted previously, that is not my role in case management of this file. [94] However, I will address some of the arguments raised by the parties, at least as far as they relate to the question of fairness forthe purposes of setting aside default notices. [95] Dr. Al-Ghamdi provided three cases after the oral hearing that he says support his position; these are Poloma InvestmentsLtd. v. Yuen, 2016 ABCA 93; Sandhu (already referred to in these reasons); and Hansraj v. Ao, 2004 ABCA 223 (also referred to bydefendants’ counsel in oral argument). [96] Dr.

Al-Ghamdi did not identify which paragraphs he was relying on in these cases, but I believe he may be referring to para 30in Hansraj as regards an applicant’s onus where it seeks to set aside service: A party who moves to set aside service is always under an obligation to give evidence about whether he in fact got notice or was in effectserved, whether or not in the precise manner intended by the party serving him. Why? In the first place, it would be pointless to set asideservice by method A, if service by method B had occurred around the same time.

In the second place, it would be unjust to set asidepurported service, or to declare that service had never occurred, if in fact the physical statement of claim, or knowledge of itsexistence and contents, had come to the knowledge of the defendant in question. (Emphasis added) [97] The applicants argued that Hansraj is distinguishable because in Hansraj, service was effected through substitutional servicein which the court specifically authorized the method of service which was proven on the evidence.

Here, service, at least service byregistered mail, did not conform to the Rules of Court for service of an originating document on an individual. As well, the application inHansraj was to set aside the service of the Statement of Claim, not to set aside default notices. [98] The decision in Poloma explains and limits the application of the obiter comments in Hansraj and actually contradicts Dr. Al-Ghamdi’s position.

At para 4, Bielby JA for the Court expressly rejected the proposition that a defendant seeking to set aside a defaultjudgment must present evidence that he was unaware of the contents of the Statement of Claim, saying (at para 5) “That is clearly notwhat this Court intended by the above obiter comment in Hansraj.” [99] Bielby JA also rejected the argument that the Court of Appeal in Hansraj was changing the test for setting aside defaultjudgments: More importantly, in it, this Court did not mention, let alone purport to change, the established common law test for setting aside adefault judgment under what was then Rule 158 of the Alberta Rules of Court, now closely captured by Rule 9.15(3) of the currentAlberta Rules of Court, which directed a court, upon any such terms as it thinks just, to set aside or vary any judgment entered on defaultor to permit a defence to be filed by a party who has been noted in default.

This has been interpreted to require courts to exercise theirdiscretion to achieve fairness by considering, among other things, whether there was a reasonable explanation advanced for the failure tofile a timely defence, the absence of delay in moving to set aside the default judgment and an arguable defence on the merits as set out inDon Reid Upholstery Ltd v Patrie (1995) (AB KB), 173 AR 233, as endorsed by Justice Rowbotham of this Court ina single judge chambers decision Settlement Lenders Inc v Blicharz 2016 ABCA 33 at paras 8, 19 and 21. [100] In Poloma, the Court of Appeal upheld the Chambers Judge’s finding that there was evidence the Defendant had no knowledgeof the claim.

This evidence, that he was out of the country when the Statement of Claim was served, was relevant to whether he had areasonable explanation for failing to file a timely defence, and was not a stand-alone requirement for setting aside the default judgment. [101] Dr. Al-Ghamdi asserts that it is clear that all the defendants had legal representation and knew of the action, therefore theywere served either by the registered mail, personal service, or when they shared the statement of claim among themselves. In regards tosharing among themselves, Dr. Al-Ghamdi may be referring back to a decision he cited in the Dr.

Henderson email disclosureapplication, Post v. Alberta (Occupational Health and Safety Council), 2005 ABCA 390. The Court in Post cited the decision in RedGiant Disposal & Services v. C.U.P.E. (1981), (BC SC), 26 BCLR 131, where the evidence demonstrated that

application for an injunction was shared among the union members at a meeting.

That BC decision was under the BC rules, and I find ithas no applicability to the circumstances here. [102] In Post, Côté JA states that personal service “occurs where actual notice of the order is received”, and he cites a number ofcases, including Rupertsland Mtge Inv v Winnipeg (City) (1981), (MB KB), 25 Man R (2d) 29 (Co Ct); Polo RalphLauren Corp v Cato, (FC), [1990] 3 FC 541(TD); Re Consiglio, (ON SC), [1971] 3 OR 798 (M);Hvozdanski Estate v Gasland Oil Ltd, 2000 ABQB 168, one of these cases deal with setting aside default notices. [103] The defendants who were served by registered mail and did not personally acknowledge receipt, were not served within themeaning of s. 11.5.

As the Court of Appeal in Thompson stressed (at para 12), service is a question of fact; according to Sandhu, this isnot mere formalism. An unconventional form of service may still be effective: Sandhu at para 19. [104] Important here, however, is the context: setting aside the default notices. Except for the three defendants who personallyacknowledged receipt of the registered mail, there is no way to know when most of the defendants received the documents and when the20 days for filing a Statement of Defence started to run, if at all.

I am not dealing with whether service was effected for the purposes ofsetting it aside or finding that no further action can be taken against the defendants. I am only deciding whether the noting in defaultshould be set aside. [105] An example of such a situation is Dr. Henderson. While the Affidavit of Service stated that he was served on November 19,2015, and he was noted in default on December 10, 2015, the registered mail acknowledgment was by P Lerch. In his affidavit ofJanuary 13, 2016 , Dr.

Henderson acknowledged receiving the Statement of Claim in on December 3, 2015; he was noted in default onlyone week later on December 10, 2015. Abuse of process [106] Dr. Al-Ghamdi goes on to say: What the applicants are doing here is abusing the process and promoting this court apprehension of bias. [107] This allegation of abuse is difficult to reconcile with Dr. Al-Ghamdi’s own actions, which include: 1.

Appearing ex parte before Justice Tilleman to seek substitutional service because the addressees had not acknowledged receipt ofthe recorded mail which he noted was a problem, then ignoring the Order that was issued 2. Noting the defendants in default, purporting to rely on the same problematic evidence critiqued in front of Justice Tilleman withoutfurther presentation to the court; 3.

Appearing ex parte before Justice Simpson to seek default judgment, without referencing that o he had previously appeared before Justice Tilleman and failed to obtain an order for substitutional service; o Justice Tilleman had ordered him to give notice of his application to the parties who had been served among others, and o the affidavits of service and default notices were obtained with the evidence he had already acknowledged was not sufficient toestablish service. As I noted previously, I do not accept his bare assertion that his concerns about service simply disappeared. 4.

Signing an affidavit of service that appears to have originally been drafted for someone else’s signature; 5. Communicating with counsel about extending the time to file the statements of defence without mentioning that he had alreadynoted numerous parties in default; and 6.

Taking further steps to note in default, even in advance of the limited extension that he had proffered. [108] Any party applying for relief from the Court without notice to affected parties carries a significant duty of disclosure: DukeEnergy Corp v Duke/Louis Dreyfus Canada Corp, 1998 ABCA 196 at para 4 where the Court states: It is trite law that a party applying to the court ex parte has a duty of disclosure; it is sometimes said to be a duty of the utmost good faith.He or she must disclose to the court all facts material to the motion in question.

It is also settled law in Alberta (and elsewhere) that thecourt is not always compelled to set aside an order for breach of that duty, but that the court will sometimes set it aside on that groundalone. We will not attempt to define the precise circumstances in which the order will or will not be set aside for non-disclosure. Butobviously a very relevant factor is how important was the evidence not disclosed to the court on the ex parte application. [109] I also note that Dr. Al-Ghamdi clearly introduced himself to Justice Tilleman and Justice Simpson as a lawyer and a member ofthe BC Law Society.

Judges are entitled to rely on the expectation that lawyers, as officers of the Court, are aware of and must abide bythis duty of utmost good faith when appearing ex parte. This is integral not just as a matter of professional responsibility but to publicconfidence in the judicial system. [110] The failure to abide by court directions or otherwise advise of 1. the involvement of opposing counsel, 2. written requests to be notified, 3. the disposition by one judge when appearing before a second judge, and

4. notings in default based on flawed affidavits are each and all very important. [111] Moreover, it is clear that Dr. Al-Ghamdi understood the significance of what he was trying to do: in addition to his status as alawyer, Dr. Al-Ghamdi stated specifically to Justice Simpson (transcript p 34, ll 24-25) in applying for default judgments: Notice in defence (sic), it can be set aside much easier than judgment --- Bias [112] Dr. Al-Ghamdi again asserts bias against Field and myself, as the case management judge. I reject these submissions for all thereasons provided in the lengthy decision rendered August 4, 2016.

Nothing new is referenced in the materials filed or in oral submissionsas would re-open the issue. There is simply no merit to these continued assertions, as to which leave to appeal was refused. Burden [113] Dr. Al-Ghamdi suggests that the defendants only rely on the fact that they were not served and have not met the burden todisprove service. This analysis is not of particular assistance in addressing an application to set aside noting in default. [114] At best, proof of service is a shifting onus: Vanden Brink v. Russell, 2012 ABQB 523 (rev’d on other grounds [2013] A.J. No.478; reasons at [2013] A.J.

No. 693) at paras 19-22. The stronger statement of law may well confirm that the Plaintiff bears the ultimateburden to prove service. However, I am not prepared as a matter of fairness to invoke any strict legal onus in the context of theseapplications. Assessment whether to set aside the default notices [115] At issue here is whether the default notices should be set aside to permit the defendants to file Statements of Defence. JusticeVeit in Don Reid Upholstery Ltd. v.

Patrie (1995) (AB KB), 173 AR 233 (QB), addressed the general principlessurrounding setting aside default notices, saying the overarching principle is to do what is fair (at para 25): Our own Court of Appeal has, of course, taken the same approach as the British Court of Appeal. In many different situations, it hasemphasized that the objective of the Rules is to achieve fairness, not blind adherence to mere formalism. [116] This approach was recently cited with approval by the Court of Appeal in Poloma Investments Ltd. at para 4, and endorsed inSettlement Lenders Inc. v.

Blicharz, 2016 ABCA 33 at para 21. [117] Veit J. noted in Don Reid Upholstery that fairness usually requires the Court to consider three factors as to whether: • the default of making defence was unintentional; • the application to set aside the default judgment was brought as soon as the default judgment was brought to the attention of thelitigant; • there is a good defence on the merits. [118] The court in 3S Resources Inc. v.

Improvisions Inc, 2014 ABQB 746 at para 44 (citing David M Gottlieb Professional Corp vNathal, 2011 ABQB 355, aff'd 2012 ABCA 88) rewords the test slightly without altering the purpose: For the Court to set aside a noting in default an applicant must show: 1. an adequate explanation as to why a statement of defence was not delivered; 2. whether there was any delay in applying to set aside the default and, if so, whether there was a satisfactory explanation accountingfor that delay; and 3. whether the material discloses a meritorious defence, that is, a triable issue of fact or law. [119] These are not essential elements that constitute a fixed test; they are examples of the kinds of considerations the Court shouldtake into account when exercising its discretion.

The true essence of the question is what is fair in the circumstances. [120] Even where an affidavits of service meets the technical requirements of the Rules and the noting in default is timely, the Courtstill has the discretion to set aside the Default Notice. For example, in Hubert v.

Outlaws Group Inc, 2007 ABCA 352, the Court ofAppeal permitted a default notice to be set aside, even though it had been obtained in a timely way and service requirements were metbecause 1) Defendant’s counsel provided new evidence as to why he delayed in applying to set aside the default notice, 2) there was areasonable explanation for the delay in delivering the statement of defence, and 3) there was a meritorious defence. [121] In fact, in many the situations where default notices have been set aside, the affidavits of service were valid and the defaultnotice timely: see for example Bowal v.

Javidan, 2010 ABQB 363, in which default notice was set aside even after seven years; 1280055Alberta Ltd v Zaghloul, 2012 ABQB 10, in which the default notice in one action was set aside, but default judgment in another was not.In Don Reid Upholstery, noting in default was set aside despite an order deeming service good and sufficient. See also: Rainville v.Strembitsky, 2002 ABQB 981; Bank of Montreal v. Profab Welding Ltd, 2014 ABQB 466; Bank of Montreal v. Maza InvestmentGroup Ltd, 2011 ABQB 741, aff’d on other grounds 2012 ABCA 112; Moose Mountain Buffalo Ranch; Fernandes v.

Canada/Portugal Chamber of Commerce and Industry Assn, 2007 ABQB 674 . [ 122 ] Another example that is instructive is Peavine Metis Settlement v. Primewest Energy Inc , 2005 ABQB 681 . The Master refused to set aside service of the Statement of Claim. He found leaving it with a receptionist was not sufficient, but once the document found its way to an officer of the corporation, it was good service, relying on Hansraj .

Despite concluding that service was good, he nevertheless set aside the default notice on the fairness principles set out in Don Reid Upholstery , concluding that 1) the defence was not filed because the Defendant mistakenly believed that the Plaintiff could not prove service, 2) the Plaintiff did not allege any prejudice by the delay in bringing the application, and 3) the defendants presented a clear defence to the claims. [ 123 ] The Applicants here argue that fairness supports setting aside the default notices because: 1.

The default notices were wrongly obtained by relying on flawed affidavits of service and failure to disclose relevant information in two court applications; 2. Dr. Al-Ghamdi’s claim raises many issues of fact and law to be tried and seeks substantial monetary and other relief; 3. The Applicants took reasonable steps to respond to the Statement of Claim as promptly as possible; 4. The Applicants moved promptly to set aside the defaults when they learned of them; and 5. The Applicants tried to reach a reasonable agreement with Dr.

Al-Ghamdi that would address the problems with service and still allow the defendants to file their defences. [ 124 ] 3S Resources Inc. emphasized that the exercise of discretion in these situations requires the Court to balance the parties’ interests and the interests of the system itself, noting (at para 4): A fundamental principle of our civil justice system is that people are entitled to their day in Court; they are entitled to hear the case against them according to the rules of evidence and respond fully to the allegations or claims; they are entitled to the benefit of a decision-maker who will weigh the evidence and law and consider it to arrive at a decision. [ 125 ] This was the motivation underlying Justice Simpson’s refusal to grant default judgment; even without detailed knowledge of the file, he expressed concern that the defendants should have an opportunity to defend against the claims. [ 126 ] Both the Court of Appeal and the Court of Queen’s Bench have regularly emphasized substance over formalism.

The rules provide for 20 days to file a Statement of Defence, but also provide broad discretion to the Court to set aside, not just notices in default or service, but also default judgment. This is because the 20 days is not a magic formula whereby a plaintiff “wins” if the defendants do not respond quickly enough. Practicing lawyers understand this and as noted by Stevenson and Côté routinely permit reasonable extension of the time for filing a defence. [ 127 ] I endorse the Applicants’ concerns over how the Affidavits of Service and default notices were obtained. At the same time, I must be mindful that Dr.

Al-Ghamdi, although a lawyer, seems to lack practical experience and has not practiced law in Alberta. It is at least possible that he may have misunderstood his professional responsibilities when he appeared in court the first time.

However once he became aware that the defendants had retained counsel and fully intended to defend. [ 128 ] It is obvious there can be no possible justification for his actions, just by reading the Amended Statement of Claim, that preparing a defence for this many defendants, responding to the complex allegations in the pleadings, and coordinating among defence counsel would take time. [ 129 ] Fairness would dictate that Dr. Al-Ghamdi must reasonably accommodate counsel for the defendants and not act unilaterally without notice.

I conclude that the defendants intended to file defences, did not intentionally fail to defend, and provided an excellent explanation for why they were unable to file. [ 130 ] Next, as I noted previously, all three counsel acted quickly to set aside the Default Notices. While it has taken some time for the applications to be heard, this was a function of my appointment as case management judge and other litigation steps to which I have made reference. [ 131 ] Finally, from a review of the pleadings, it is clear that there are significant issues to be tried.

Not every defendant has individually set out their meritorious defence, but the Amended Statement of Claim alleges a vast conspiracy among many organizations and individuals and serious consequential relief all of which requires adjudication. The Court of Appeal has held that, depending upon the circumstances, a meritorious defence need not be demonstrated in every case: Moose Mountain Buffalo Ranch (at para 11 ). [ 132 ] It is for this court to weigh the relative merits of allowing the noting in defaults to remain or be set aside as a matter of fairness.

A number of professionals, public bodies and institutions are affected by the allegations and have raised arguable points in response to the allegations. The Court will not condone any attempts to improperly curtail their access to the Court to make full response. [ 133 ] From prior case decisions, the overall goal here is fairness. We know the parties planned to defend and would have defended if they not been noted in default. The serious problems associated with the default notices and the affidavits of service are also relevant to a fair assessment of these circumstances.

I conclude that the default notices should be set aside and that all applicants be permitted to file statements of defence. Additional relief [ 134 ] Dr. Henderson asserts that the Default Notice against him is a nullity. The evidence is clear that he was improperly noted in default before expiry of the prescribed 20 day period. However, he seeks the same relief – to be permitted to file a statement of defence.

It matters little whether the Default Notice is declared a nullity. I have considered the impropriety of the affidavits of service and noting in default when deciding to set aside the default notices. It is not necessary to declare the Default Notice a nullity and I decline to do so. [ 135 ] Gowling argues that none of the six applicants it represents were served within one year. Accordingly, they seek an order that no further proceedings be taken against them under r 3.28 which provides: 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,... [ 136 ] As noted during oral argument, such a remedy could arguably end the action against certain defendants. Counsel are aware that all applications for remedies as may be fully dispositive of any claims are to be heard by Justice Goss. As such, I am not prepared to address the additional relief sought. I do however specifically refer this issue to Justice Goss and waive the time deadline otherwise applicable since Dr. Al-Ghamdi has been aware of this issue since at least January 6, 2017.

The affected Applicants shall file their brief on this issue not later than March 17, 2017referencing what material from the March 2 nd application will be relied upon. As contemplated by my Order of January 17, 2017 no further Affidavits shall be filed after March 24, 2017. The deadlines for filing of Briefs shall apply to the r 3.28 matters with no extensions. [ 137 ] On the issues before me, I treat the status of all Applicants on the issues before me as entitled to the same relief..

Conclusion [ 138 ] Accordingly I have determined and hereby direct that all Default Notices be set aside and that all defendants, including those three personally served, (Drs. Piepgrass, Dr. Sendziak, and Dr. McGowan), and the three defendants who acknowledged receipt of the recorded mail, (Denise Giebelhaus-Graw, Peter Miles, and Desire Pullishy) be permitted to file Statements of Defence subject to the following terms: 1. These directions are subject to the rulings of Justice Goss on

summary disposition motions, such that any relief as would terminate proceedings shall not be impeded by this decision and no defences would be required from such Defendants against whom the action has been dismissed; 2. Subject to condition 3 below, statements of defences for all Defendants against whom any action herein remains shall be filed within 30 days of the date on which Justice Goss renders a decision as would compel a defence to be provided; 3. Alberta Health Services and Dr. Kevin Worry shall provide unfiled and without prejudice Statements of Defence to Justice Goss, Dr.

Al-Ghamdi and other counsel in this action not later than April 4, 2017 for the benefit of the court. These Defences a. shall be formally filed within 15 days of the date on which Justice Goss renders a decision as would compel a defence to be provided; and b. may only be amended by consent or upon timely application to the Case Management Judge and upon prior reasonable notice to Dr. Al-Ghamdi. 4. These directions are similarly without prejudice to any applications pursuant to r 3.28 as to which Dr.

Al-Ghamdi has failed to file any applications to either extend the time for service or to deem service good and sufficient, despite the reminders and extension of deadline previously reviewed. [ 139 ] Costs will be addressed orally in Court based on submissions already received. Heard on the 2 nd day of March, 2017. Dated at the City of Edmonton, Alberta this 10 th day of March, 2017. S.D. Hillier J.C.Q.B.A. Appearances: P. Jon Faulds, QC

J. Mark Raven Jackson Dana L. Adams Field LLP for the Applicant Defendants: Alberta Health Services Jason Becker Liam McGowan Blair Carbert Brian L. Gallant Carbert Waite LLP For the Applicant Defendants: David Dawson Bryce Henderson Doug Perry Saifee Rashiq Carol Rowntree Kenneth Warren, QC Gowling WLG For the Applicant Defendants: Oluwatosin Akinbiyi Corne Booysen Alika Lafontaine Avisha Narnaware Chantelle Peter Robert Staples Carin Strydom Scott Wiens Dr. Mohammed Al-Ghamdi Self-represented Respondent Plaintiff