Lauzon v Edmonton (Police Service), 2023 ABKB 40

Court of King’s Bench of Alberta Citation: Lauzon v Edmonton (Police Service), 2023 ABKB 40 Date: 20230123 Docket: 2103 15136 Registry: Edmonton Between: Ryan Lauzon Plaintiff - and - Edmonton Police Service & Edmonton Chief of Police Dale McFee & Constable Krista Gavin & Constable Nicholas Karamples & Constable Lucas Braithwaite & Constable Dennis Dalziel & Constable Danny Fedechko & Andrew James Donald & John Doe I & John Doe II & John Doe III & John Doe IV Defendants _______________________________________________________ Endorsement of the Honourable Applications Judge B.W.

Summers _______________________________________________________ [ 1 ] This Endorsement considers the without notice application submitted by the Plaintiff for orders for substitutional service and an extension of time to serve a Statement of Claim and Amended Statement of Claim. [ 2 ] The relevant chronology is as follows: (

a) October 6, 2021—Statement of Claim filed; (

b) October 7, 2022—Order granted extending time to serve four Defendants not yet served for three months from October 6, 2022 (the application had been received by the Court before the one year expiry); (

c) January 4, 2023—Amended Statement of Claim filed;

(

d) January 6, 2023—Plaintiff filed a without notice application for a second three month extension to serve the four Defendants not served; (

e) January 6, 2023—I rejected the application stating: “I am not aware of any authority for the granting of more than one extension under Rule 3.26”; (

f) January 9, 2023—The Plaintiff filed a further affidavit (sworn January 6, 2023) stating “We are seeking a subservice Order to have the Statement of Claim and Amended Statement of Claim served on the Defendants at the downtown Edmonton Police Station Headquarters which is all of the Defendants (sic) place of work, or previous place of work” and “...in view of the present circumstances the Plaintiff will need an order from the Court granting an extension of time to serve the Statement of Claim under Rule 3.26(1)”; (

g) January 10, 2023—I rejected the Plaintiff’s application and noted that the concern previously noted by me had not been addressed; (

h) January 11, 2023—The Plaintiff resubmitted the same application for orders for substitutional service and extension of time to serve. This was rejected by me for the same reason first enunciated; (

i) January 12, 2023—In response to a further application, submitted on January 11, 2023, I rejected the application yet again and stated: “Even if I were to grant an order for substitutional service now, service cannot be completed within the service period. If you think that there are any further submissions you think that should be made, please attend in my chambers tomorrow morning”; (

j) January 13, 2023—Counsel for the Plaintiff appeared in chambers and made submissions as to why she thought that the orders for substitutional service and an extension of time to be served should be granted. I directed her to submit any case authority for her application within one week; and (

k) January 20, 2023—A further affidavit was submitted that referenced two cases with respect to Rule 3.27. [ 3 ] I understand the argument of Plaintiff’s counsel to be this: “After the application for an order extending the time for service was rejected, a further application for substitutional service was submitted on January 6, 2023, which is within the three month deadline set by the extension order granted on October 7, 2022. If that order had been granted then, we could have substitutionally served the four Defendants at police headquarters then and no extension would have been required.

Since the court did not give us the order on January 6, 2023, the court should now grant the order for substitutional service and also grant an order extending the service period under Rule 3.27.” [ 4 ] With respect, I reject that submission. [ 5 ] Firstly, although counsel for the Plaintiff states that her application for substitutional service was submitted on January 6, 2023, the Court records show the affidavit filed in support to have been filed on January 9, 2023. [ 6 ] Secondly, the evidence submitted does not warrant an order for substitutional service.

Simply stating that the downtown Edmonton Police Station Headquarters is the place of work, or previous place of work of the four Defendants not served does not comply with the rules. Rule 11.28(2) states an application for substitutional service must be supported by an affidavit “... (

c) stating why the alternative method of service is likely to bring the document to the attention of the person to be served”. There is no indication in the evidence how the documents left at the downtown Edmonton Police Station Headquarters will get into the hands of the four Defendants. Has someone agreed to forward them to the Defendants? Have the Defendants agreed to pick them up there?

Without this further evidence, simply stating that the documents will be left at a place of work or former place of work is not sufficient. [ 7 ] Thirdly, this order for substitutional service could not be accomplished within the service period and an extension would be required, which is not available under the rules. [ 8 ] In the affidavit sworn and submitted on January 20, 2023, the Plaintiff contends that as there is no prejudice to the Defendants, since they have known about the case for over two years, an extension should be granted under rule 3.27(1).

That rule states: Extension of time for service 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. [ 9 ] Paragraphs (

a) and (

b) of subsection 3.27(1) have no application to this case. [ 10 ] The Plaintiff relies upon subsection (c). However, the Plaintiff has not provided any evidence that there are special or ordinary

circumstances resulting solely from the Defendants’ conduct or from the conduct of a person who is not a party to the action. [ 11 ] Although not specifically stated by the Plaintiff’s counsel, if she is suggesting that the Court is solely responsible for the Defendants not being served within the service period, I reject that. [ 12 ] The cases with respect to rule 3.27 referenced in the affidavit sworn January 20, 2023 are distinguishable from this case. [ 13 ] The Plaintiff’s application is dismissed. Heard on the 13 th day of January, 2023 and written submissions received January 20, 2023.

Dated at the City of Edmonton, Alberta this 23 rd day of January, 2023. B.W. Summers A.J.C.K.B.A. Appearances: Zaineb Hussein Martin G. Schulz & Associates for the Plaintiff