Scarlett v Sinclair, 2017 ABQB 582

Court of Queen’s Bench of Alberta Citation: Scarlett v Sinclair, 2017 ABQB 582 Date: 20170928 Docket: 1303 08314 Registry: Edmonton Between: Patrick Scarlett Plaintiff (Respondent) - and - Detective Paul Sinclair (Badge #1980), Constable Kyle Pagnucco (Badge #3317), Constable Jeff Sliwa (Badge #3214), Edmonton Chief of Police Rod Knecht Defendants (Applicants) _______________________________________________________ Reasons for Decision of W. S.

Schlosser, Master, Master in Chambers _______________________________________________________ Introduction [ 1 ] This is a Rule 4.33 application to strike for long delay but with a twist involving service and the ‘​​​​​​​​​​​adjuster’s year’. The Applicants also seek costs of the application and the action in the amount of $8,979.97. Authorities 1. Sandhu v MEG Place LP Investment Corporation , 2012 ABCA 266 . 2.

Interpretation Act, RSA 2000, c I-8,

Section 23; 3. Canada North Group Inc (CCAA), 2017 ABQB 550 ; 4. E-W Commodities (Gibb) v Nigeria (Rep), 2003 ABQB 604 ; 5. Alberta Business Corporations Act, RSA 2000, c B-9; 6. Alberta Rules of Court , Alta Reg 124/2010, Rules 4.33, 11.5 , 11.15 , 11.20 , 11.22 , 1.8 , 11.6(2) (b), 11.7(2) (b).

Facts [ 2 ] Mr. Scarlett claims he was a victim of racial profiling. The Statement of Claim was served in early June, 2014. Statements of Defence were filed June 19 and 23, 2014, respectively, on behalf of the Chief and the individual members. [ 3 ] A Statement of Defence on behalf of the members was sent by recorded mail to the Plaintiff’s address for service. It was delivered and signed for on June 26, 2014, but not by the Plaintiff (contrary to paragraph three of the Applicant’s Affidavit).

A “J O’Neil”, who is not the Plaintiff, signed for the package. [ 4 ] The Plaintiff admits that J O’Neil is the main tenant where he lives.

But he swears he never got the defence, saying: It is my solemn declaration, through this affidavit of mine, that I, Patrick Scarlett, have never received any Statement of Defence documentation from the defendants, in relation to my Court of Queen’s Bench civil action, Court File Number 1303-08314, either in hand, or through anybody else (namely O’Neil John), and the only documentation I, Patrick Scarlett, have since received in my hands from the defendants, in relation to this Court of Queen’s Bench action, Court File Number 1303-08314, is the affidavit document from defendant Paul Sinclair, through his lawyer, Michele A.

Wolowidnyk, on July 17, 2017. [ 5 ] Mr. Scarlett says he did not get anything at all from the Defendants until he received this application. Though it doesn’t make any difference to this application, Mr. Scarlett’s address for service on the Statement of Claim had an incorrect postal code. The Issue [ 6 ] The service issue is crucial. Rule 4.33 provides: . . .

(2) If 3 or more years have passed without a significant advance in an action, the Court, on application, must dismiss the action as against the applicant, unless (

a) the action has been stayed or adjourned by order, an order has been made under subrule (9) or the delay is provided for in a litigation plan under this Part, or (

b) an application has been filed or proceedings have been taken since the delay and the applicant has participated in them for a purpose and to the extent that, in the opinion of the Court, warrants the action continuing. ... And, importantly:

(4) The period of time referred to in subrule (2) does not include the following, whichever ends earlier: (

a) the period of time between the service of a statement of claim on an applicant and the service of the applicant’s statement of defence; (

b) the period of one year after the date of service of a statement of claim on an applicant. (emphasis added) The Chief of the Edmonton Police Service [ 7 ] Rule 4.33 permits the Court to dismiss an action against an Applicant. In this case the application is styled as being on behalf of “The Edmonton Police Service Defendants”, which would, presumably, include the Chief. [ 8 ] However, two Statements of Defence were filed; one on behalf of the Members and one on behalf of the Chief. They are represented by separate firms. There is no evidence of a change of counsel.

There is no evidence that the Chief’s defence was ever served. [ 9 ] If the application is made on behalf of the Chief of Police, it is dismissed, as the four year period after service of the Statement of Claim has not expired. [ 10 ] The issue for the remaining Defendants is straightforward. If the Statement of Defence was served over three years ago, the action must be dismissed. Nothing else happened in the lawsuit. If the Statement of Defence was not served, the Plaintiff gets the benefit of the ‘adjuster’s year’ and the time would not be up until June, 2018. Deemed Service [ 11 ] Rule 11.5 provides:

11.5(1) A commencement document may be served on an individual who is not required to be served by another method under this Division by (

a) being left with the individual, ...

(2) Service is effected under this rule, (

a) if the document is left with the individual, on the date it is left, or (

b) if the document is sent by recorded mail, on the date acknowledgment of receipt is signed by the individual to whom it is addressed . (emphasis added) [ 12 ] If the Statement of Defence were a commencement document, which it is not, service would be effective when Mr. Scarlett signed for it (see also Rules 11.6(2) (

b) and 11.7(2) (b). Otherwise, service would have to be validated. [ 13 ] The rules for Service of non-commencement documents are subtly but significantly different. Neither Rule 11.15(2) nor 11.22(2) expressly require acknowledgment of receipt of non-commencement documents by the individual to whom it is addressed; as does Rule 11.5(2)(

b) for commencement documents. [ 14 ] An address for service was provided. Rule 11.15 provides:

(1) In an action, a commencement document may be served on a person who has provided an address for service on a filed document (

a) by being left, addressed to the person, at that address, or (

b) by being sent by recorded mail, addressed to the person, at that address.

(2) Service is effected under subrule (1), (

a) if the document is left at the address, on the date it is left, or (

b) if the document is sent by recorded mail, on the date acknowledgment of receipt is signed. [ 15 ] The Defendant chose Rule 11.15(1)(b). Rule 11.15(2)(

b) says acknowledgment of receipt, not acknowledgment of receipt ‘by the individual to whom it is addressed’. [ 16 ] Rule 11.22 uses similar language about acknowledgement:

(1) A document, other than a commencement document, may be served on a party by being sent by recorded mail, addressed to the party at the address for service provided in the most recently filed document in the action.

(2) Service is effected under this rule on the earlier of (

a) the date acknowledgment of receipt is signed, and (b) 7 days after the date on which the recorded mail is sent. [ 17 ] Rule 11.22(2)(

b) also requires only acknowledgment, not acknowledgment ‘by the individual to whom it is addressed’. Rule 11.22(2)(

b) makes service by recorded mail effective seven days after sending, even if it isn’t signed for. [ 18 ] This is consistent with the timing in section 23(1) (

a) of the

Interpretation Act . The

section provides: 23(1) If an enactment authorizes or requires a document to be sent, given or served by mail and the document is properly addressed and sent by prepaid mail other than double registered or certified mail, unless the contrary is proved the service shall be presumed to be effected (a) 7 days from the date of mailing if the document is mailed in Alberta to an address in Alberta, or (

b) subject to clause (a), 14 days from the date of mailing if the document is mailed in Canada to an address in Canada. (2) Subsection (1) does not apply if (

a) the document is returned to the sender other than by the addressee, or (

b) the document was not received by the addressee, the proof of which lies on the addressee. Applying the

Interpretation Act would solve the problem because 23(2)(

b) is satisfied. [ 19 ] However Rule 1.8 excludes the

Interpretation Act for the service rules, providing: 1.8 The

Interpretation Act applies to these rules except ...

(

c) section 23 of the

Interpretation Act, which does not apply to service of documents under these rules, ... (emphasis added) [20] I recognize that a party gives an address for service at their peril. I also recognize that it would be inadvisable to injectuncertainty into the service rules. On that basis, I could infer that Rules 11.15 or 11.22 do not require that the party actually get thedocuments. This would probably be consistent with Rule 1.8 excluding

section 23 of the

Interpretation Act; though it is not clear whetherthe intention was to exclude the first part of the section, the second part of the

section or the whole thing. This approach could be theintent of the wording of 11.15(2) and 11.22(2) which, as noted, is different from 11.5(2)(

b) in that they are unqualified. However, it isnot clear why deemed notice should trump actual notice in these circumstances. [21] The decided cases emphasize actual notice; Sandhu (and, more recently, Canada North at paras 58-67). In Sandhu (para 18)the Court tells us: “... in order to demonstrate proper service ..., it must be shown that the respondents received notice ... in a context thatmade it clear that their rights were being engaged.” In that case there was actual notice, though no ‘direct service’ the Court continued: 21 Procedural rules almost invariably require and recognize an "address for service".

After the commencement document is served,every party is required to signify an address at which it may be served with subsequent documents. The procedural rules provide or implythat the address for service can be changed from time to time as required. Significantly, service of process on the address for service isrecognized as good service: Rules 11.15, 11.17, 11.22; Bishop v. Bishop (1990), 113 AR 280 at para. 10 (CA); Hughes Estate v.Hughes, 2006 ABCA 332 at para. 9, 68 Alta LR (4th) 231, 397 AR 310; Kelly v.

Calgary Soccer Federation, 2008 ABCA 85 at para. 2;Dixon's Boatbuilders Ltd. (Re) (2000), (NS SC), 194 NSR (2d) 194 at paras. 19-20, 20 CBR (4th) 67; Gully v. TDCanada Trust, 2002 BCSC 1170 at paras. 18-9, 36 CBR (4th) 58. The ruling of the chambers judge, that the address for service is notalways effective, would create great uncertainty in all civil litigation. No litigant could be sure in any particular case whether the addressprovided was adequate or not. ... [22] Sandhu and Canada North were cases of actual notice, though late or indirect.

There is no real issue about the address forservice in this case, only that the Plaintiff never got it. [23] As I understand it, there are two methods of recorded mail: one that tracks delivery and one that requires acknowledgment ofreceipt by the recipient with a signature. Both cases get a tracking number that can be checked online. But if you want a signature, itcosts more. Who is permitted to sign may depend on whether the recipient is a company or an individual.

In this case, the Applicantschose the second form of recorded mail, to an individual, requiring a signature. [24] This distinction does not seem to be recognized by the Rules: Rule 11.22(2)(

b) seems to incorporate Section 23(1)(

a) of theInterpretation Act, but if delivery is tracked it is not clear why a reference to ‘seven days’ is necessary. This form of recorded mail betterfits Rule 11.15(2)(

a) but it is not clear why that Rule would use term “left”, when it is delivered by the post office. I am not aware of aform of recorded mail that permits anyone other than the addressee to sign if the addressee is an individual. [25] In my view, Rules 11.15 and 11.22 are out of step with the methods of recorded mail. They might also be out of step with theoverriding principle that the purpose of service is notice.

If I were called upon to decide the case on this basis, when a party choses toserve an individual by recorded mail requiring an acknowledgment at an address for service, I would be inclined to read in the wordingof Rule 11.5(2)(b). I have some difficulty finding that there is effective service if it was signed for by someone else and the addresseedidn’t get it.

Service in those circumstances would have to be validated and this would be unlikely in the case of unequivocal evidence ofno notice. [26] I do not wish to suggest that an address for service is something that cannot be relied upon, only that by reading signed bythe person to whom it was addressed into 11.15(2)(

b) or 11.22(2)(

a) would create greater certainty, not less. [27] At the very least, these Rules send mixed messages. There is a high threshold for dismissing a lawsuit summarily onprocedural grounds. However you look at it, the overriding purpose of the service Rules is notice and Mr. Scarlett didn’t get it. ThereforeI have at least a reasonable doubt about whether deemed notice is enough to end the adjuster’s year in Rule 4.33(4). Rule 11.31(3) [28] Fortunately, it is not necessary to decide the case on this basis. Rule 11.31(3) permits the Court to set aside service under thefollowing circumstances:

(3) If the Court is satisfied that (

a) the addressee did not receive a document, other than a commencement document, sent by recorded mail within 7 days after the dateon which the recorded mail was sent, (

b) the failure of the addressee to receive the document is not attributable to the addressee’s own efforts to avoid receiving thedocument, and (

c) the addressee would be prejudiced by the application of rule 11.22(2) [Recorded mail service], the Court may make any order that the Court considers appropriate in respect of any matter relating to the document, including settingaside service. [29] In this case the Plaintiff swears he did not receive the defence within 7 days – or at all. There is nothing to suggest that it washis fault (though I would like to have heard from Mr. O’Neil). None of the things in Rule 11.2 apply. The addressee would be prejudicedby deemed service as he would no longer enjoy the benefit of the adjuster’s year and his lawsuit would be terminated summarily, on

procedural grounds. [ 30 ] Neither side mentioned Rule 11.31 which, in my view, applies directly in Mr. Scarlett’s favour. I am reluctant to blame the Applicant as Mr. Scarlett should have raised it on his own behalf. However, there is a heavier onus on counsel when the other side is self-represented; sometimes requiring counsel to take on more of the role of a prosecutor than that of an advocate. The burden can’t fall entirely on the Courts shoulders. [ 31 ] The affidavit in support of the application was incorrect, though I acknowledge that this was acknowledged and corrected in the subsequent Brief.

Relying on such an affidavit, without more, could attract heavy costs ( E-W Commodities ). Disposition [ 32 ] The application is dismissed. Heard on the 8 th day of August, 2017. Written Submissions: August 25 th and September 8 th , 2017. Dated at the City of Edmonton, Alberta this 28 th day of September, 2017. W.S. Schlosser M.C.Q.B.A. Appearances: Patrick Scarlett Self-Represented Michele A. Wolowidnyk of Weir Bowen LLP for the Defendant (Applicant) Paul Sinclair