Pocha v Adamson, 2023 ABKB 118

Court of King’s Bench of Alberta Citation: Pocha v Adamson, 2023 ABKB 118 Date: 20230301 Docket: 2203 15233 Registry: Edmonton Between: Shirley Madonna Pocha Applicant - and - Tracy Lee Adamson, Darryl Patrick Adamson, Kerry Robert Adamson, and Happy Loan Corp., and Consolidated Civil Enforcement Inc. Respondents _______________________________________________________ Reasons for Decision of the Honourable Justice S. N. Mandziuk _______________________________________________________ I. Introduction [ 1 ] The Applicant, Shirley Madonna Pocha, is 73 years old. She has three adult children: Tracy Lee Adamson ("Tracy”);

Darryl Patrick Adamson (“Darryl”); and Kerry Robert Adamson (“Kerry”).

Tracy, Darryl and Kerry are the individual Respondents (collectively, the “Adult Children”). [ 2 ] In 2016, the Applicant and the Adult Children bought a house in Leduc for $360,000 on a cash basis (the “House”). [ 3 ] The Adult Children were placed on title as joint tenants but, according to the Applicant, made no contribution to the purchase, capital or operating expenses of the House, nor was their credit required. [ 4 ] In the meantime, Darryl borrowed money from the Respondent Happy Loan Corp. (“Happy Loan”). [ 5 ] Happy Loan has registered various encumbrances against title to the House, including an Agreement Charging Land (February 22, 2019) and a Writ in the sum of $11,494 (May 31, 2021).

The Respondent, Consolidated Civil Enforcement Inc. (“CCEI”), which acts as Happy Loan’s agent, also registered a Notice of Intention to Sell the House (September 3, 2021). [ 6 ] The latter two documents are the result of legal action taken by Happy Loan against Darryl which resulted in Happy Loan obtaining a Default Judgment against Darryl. [ 7 ] The Applicant now wants to sell the House to downsize due to her age and financial difficulties, but she needs to secure the Adult Children’s consent because they are on title. Darryl refuses to consent and resolve the encumbrances on title. Kerry is agreeable.

The position of Tracy is not known. [ 8 ] The Applicant seeks the following relief: (

a) A declaration that the Adult Children have no legal or equitable interest in the House; (

b) An Order directing the cancellation of the current Certificate of Title to the House and its reissuance in the Applicant’s name alone, pursuant to s 190 of the Land Titles Act , RSA 2000, c L-3 ; (

c) An Order directing the discharge of encumbrances registered on title to the House by Happy Loan; (

d) An Order allowing immediate registration of the Order resulting from this application, if the Applicant is successful; (

e) Costs against all of the Respondents. [ 9 ] This matter came before the Court by way of Originating Application in morning chambers. Given its factual and legal complexity, I requested written argument from counsel. II. Preliminary Issue: Service on the Adult Children [ 10 ] The Applicant submits that there are no issues with respect to service of this application on the Adult Children.

The Applicant claims that she properly served all the Adult Children with the Originating Application and supporting Affidavit with exhibits (the “Court Documents”). [ 11 ] The Respondent, CCEI, disputes the validity of service of the Court Documents on Tracy and Darryl. The Respondent submits that there is no order validating service in accordance with Rule 11.27 or substitutional service in accordance with Rule 11.28, which contravenes Rule 11.4. [ 12 ] Service on Kerry is not in issue; the parties agree that it is valid.

Therefore, I will only examine whether service on Darryl and Tracy is valid. [ 13 ] The Applicant filed the Court Documents on September 27, 2022, pursuant to Rule 3.8 of the Alberta Rules of Court , Alta Reg 124/2010 ( Rules of Court ). [ 14 ] The Applicant purported to serve Darryl and Tracy with the Court Documents in the following manner: • On October 3, 2022, Darryl was served by posting the Court Documents to the main entry of 11615 44A Avenue, Edmonton, Alberta. • On October 3, 2022, Tracy was served via email to tracyleeadmson@hotmail.com . [ 15 ] The Affidavit of Service of Sharon Edwards, sworn on October 5, 2022 and filed on October 12, 2022, confirms the above noted service on Darryl.

The Applicant submits that the Court Documents came to Darryl’s attention because the Applicant’s lawyer was contacted by Allison L. Nutting (Ms. Nutting) of Forum Law LLP, who confirmed that Darryl would be self-represented for this application. [ 16 ] The Affidavit of Service of Betsy-Anne Johnson, sworn on October 26, 2022 and filed on November 3, 2022, confirms the above noted service on Tracy. Prior to service, Tracy confirmed that she would accept service of the Court Documents via email as evidenced by the email conversation between the Applicant’s lawyer and Tracy on August 26, 2022.

The email conversation is marked as Exhibit “A” in the Applicant’s Reply to CCEI’s written submission, filed on December 7, 2022. [ 17 ] The Applicant's application was scheduled for and heard on October 27, 2022. None of the Adult Children attended, filed

documents or otherwise engaged themselves in these proceedings. [ 18 ] The Rules of Court establish clear steps and procedures with respect to service of commencement documents. Rule 11.5 states that there are two proper ways to serve an individual: 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, or (

b) being sent by recorded mail addressed to 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. [ 19 ] A party can use Rule 11.28 to obtain an order for substitutional service to serve an individual via a method that is not listed in Rule 11.5: 11.28

(1) If service of a document, inside or outside Alberta, is impractical, the Court may, on application, make an order for substitutional service.

(2) The application must be supported by an affidavit (

a) setting out why service is impractical, (

b) proposing an alternative method of service, and (

c) stating why the alternative method of service is likely to bring the document to the attention of the person to be served.

(3) Unless otherwise ordered, an order for substitutional service of a document must be served with the document except when substitutional service is by advertisement, in which case the advertisement must contain a reference to the order.

(4) If a document is served in accordance with an order for substitutional service, service is effected on the date specified in the order. [ 20 ] Additionally, if the documents are not served in accordance with Rule 11.5, Rule 11.27 provides a method for validating service: 11.27

(1) Except in respect of a document that must be served in accordance with Division 8, the Court may, on application, make an order validating the service of a document served inside or outside Alberta in a manner that is not specified by these rules if the Court is satisfied that the method of service used brought or was likely to have brought the document to the attention of the person to be served.

(2) On application, the Court may make an order validating the service of a document served inside or outside Alberta if the Court is satisfied that the document would have been served on the person or would have come to the attention of the person if the person had not evaded service.

(3) If service is validated by the Court under this rule, service is effected on the date specified in the order.

(4) Subrules (1) and (3) apply despite any previous order that permitted or directed service of the document by a particular method. [ 21 ] In Thompson v Procrane Inc. (Sterling Crane), 2016 ABCA 71 at para 10 ( Thompson ), the Alberta Court of Appeal urged against an overly formalistic approach to service: Service is a quintessentially practical consideration. The only point of service is that the defendant must get notice of the claim against it. Service is not some sort of magical or formalistic ritual that has to be followed.

While civil procedure recognizes certain forms of service, unconventional forms of service that actually bring the legal process to the attention of the person being served are still effective . (Emphasis Added) [ 22 ] At no point has the Applicant brought an application before this Court for substitutional service under Rule 11.28 or for validation of service under Rule 11.27. [ 23 ] The question that I must answer is whether the person being served received a copy of the required documents. This is a question of fact: Thompson at para 12 .

If the document is received, the method of service is inconsequential: Sandhu v MEG Place LP Investment Corp , 2012 ABCA 266 ( Sandhu ); Thompson at para 12 . A. Darryl [ 24 ] Rule 11.5 requires the Applicant to serve Darryl either by personal service or recorded mail. Neither of these options were exercised here. The Applicant states that Darryl was served by posting the Court Documents to the main entry of 11615 44A Avenue, Edmonton, Alberta.

[25] Rule 11.27 enables the Court to validate service done “in a manner that is not specified by these rules if the Court is satisfiedthat the method of service used brought or was likely to have brought the document to the attention of the person to be served.”Additionally, the Alberta Court of Appeal in Sandhu and Thompson further enables this Court to validate service by alternative methodsas long as the actual documents were received. [26] There is no indication from Darryl that he received the documents posted on the main entry of 11615 44A Avenue.

It is notclear from the Applicant’s submissions whether 11615 44A Avenue is Darryl’s primary residence and why they chose to post thedocuments on the entrance of that particular property. [27] The Applicant also provided email correspondence between her lawyer and Ms. Nutting, who appears to represent Darryl onsome matters. The email correspondence indicates that Applicant’s lawyer sent the Court Documents to Ms. Nutting on October 21,2022. Ms. Nutting also stated that she was not retained for this matter, which led her to believe that Darryl would represent himself onOctober 27, 2022.

This email exchange does not affirmatively confirm that Darryl actually received the Court Documents or that serviceon his lawyer was effective. [28] Where Rule 11.5 is not followed, there needs to be a confirmation that clearly indicates that Darryl received the CourtDocuments. It is not clear on the evidence that Darryl received the Court Documents. [29] I conclude that Darryl was not properly served. B.

Tracy [30] In the August 26, 2022 email exchange between the Applicant’s lawyer and Tracy, the Applicant’s lawyer asked if Tracy isagreeable to receiving court documents via email, to which she responded – “send any relevant documents to this email.” The Applicantalso provided an email confirming that her lawyer sent the Court Documents to Tracy on October 3, 2022.

The Applicant did not provideany other proof of email correspondence confirming that Tracy received the Court Documents on or about October 3, 2022. [31] While service of commencement documents via email is not compliant with Rule 11.5, Rule 11.27 enables the Court tovalidate service where it is effected “in a manner that is not specified by these rules if the Court is satisfied that the method of serviceused brought or was likely to have brought the document to the attention of the person to be served”.

As noted above, the Alberta Courtof Appeal in the Sandhu and Thompson decisions underscore this Court’s power to validate service by alternative methods as long as theactual documents were received. [32] While there is a proof that Tracy was agreeable to receiving the Court Documents via email, there is no proof provided ofthem being actually received by Tracy. The direction in Sandhu and Thompson is clear that the documents must be received. However,with the evidence provided, it is not known whether Tracy actually received the documents.

The emails prove only plans for service andattempted service, but not actual service. [33] I conclude that Tracy was not properly served. III. Conclusion [34] The Applicant failed to properly serve Darryl and Tracy with the Court Documents. I cannot proceed with deciding theoutstanding issues in this matter until Darryl and Tracy are served in accordance with the Rules of Court.

To hold otherwise wouldviolate a long standing and fundamental principle of natural justice: The audi alteram partem principle, which is a rule of natural justice and one of the tenets of our legal system, requires that courts providean opportunity to be heard to those who will be affected by the decisions. (A (LL) v B (A), (SCC), [1995] 4 SCR 536 at para 27) [35] The substantive application can be brought before me once proper service has been effected on all interested parties,employing the substitutional and validation rules as and if required. [36] I am not seized with any applications with respect to service, which should be brought before an Applications Judge. [37] I am seized with the substantive application until I decide otherwise.

The parties can

schedule that application through theCourt Coordinators. Heard on the 27th day of October, 2022. Written Argument Received November 10, November 30, December 7 and December 9, 2022 Dated at the City of Edmonton, Alberta this 1st day of March, 2023.

S. N. Mandziuk J.C.K.B.A. Appearances: S. Oviatt for the Applicant U. E. Anya for the Respondents Happy Loan Corp and Consolidated Civil Enforcement Inc. No one appearing for the Respondents. Tracy Lee Adamson, Darryl Patrick Adamson, Kerry Robert Adamson