Toronto Dominion Bank v Halliday, 2022 ABKB 764

Court of King’s Bench of Alberta Citation: Toronto Dominion Bank v Halliday, 2022 ABKB 764 Date: 20221117 Docket: 2203 15699 Registry: Edmonton Between: The Toronto Dominion Bank Plaintiff - and - Robyn Halliday Defendant _______________________________________________________ Memorandum of Decision of the Honourable Applications Judge B.W.

Summers _______________________________________________________ [ 1 ] This Memorandum of Decision addresses when service of a commencement document, other than by personal service, does not require an order validating service. [ 2 ] By desk application [1] , the Plaintiff applied for an order validating service of the Statement of Claim upon the Defendant. The application was made under Rule 11.27 which states: 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. [ 3 ] The affidavit filed in support of the Plaintiff’s application attaches as an exhibit an email to the Defendant which stated: “Attached to this email is the Statement of Claim in court action # 2203 15669, The Toronto Dominion Bank v. Robyn Halliday. Please confirm if you are willing to receive this document via email”.

The Defendant’s email response, which was also attached to the affidavit as part of the exhibit stated: “I confirm that the document is received”. [ 4 ] It is my opinion that this affidavit evidence demonstrates good service under our Rules of Court and an order validating service is not required. In stating this I have considered certain of our Rules of Court regarding service. [ 5 ] Firstly, Rule 11.18 states: Service on self-represented litigants 11.18(1) A self-represented litigant may accept, in writing, service of a commencement document.

(2) Service is effected under this rule on the date that the self-represented litigant accepts service of the document in writing. [ 6 ] In this case there is no evidence that the Defendant is represented by a lawyer or that she wants to retain one. At this stage she is a self-represented litigant. [ 7 ] Secondly, Rule 11.30 sets out the evidence required to prove service as follows: Proving service of documents 11.30(1) Service of a document in Alberta and service of documents other than commencement documents outside Alberta may be proved to have been effected (

a) by an affidavit (

i) stating that the person was served, (ii) describing the method of service, and (iii) stating the date and place of service, (

b) by an acknowledgment or acceptance of service in writing by the person served or by a lawyer on the person’s behalf, or (

c) by an order validating service under rule 11.27.

(2) Service of a commencement document outside Alberta may be proved to have been effected (

a) by an affidavit (

i) stating the real and substantial connection between Alberta and the claim, (ii) stating that the person was served, (iii) describing the method of service, and (iv) stating the date and place of service,

b) by an acknowledgment or acceptance of service in writing by the person served or by a lawyer on the person’s behalf, or

c) by an order validating service under rule 11.27. [ 8 ] I have underlined the parts of this Rule that are most relevant to my decision on this application. [ 9 ] Historically, the concept of “acknowledgement or acceptance of service in writing” may have required a document being put into evidence with the recipient’s handwritten signature on it. Such a requirement is anachronistic and has no place in this day and age. I venture to speculate that over 99% of written communication today is by electronic means.

In my view, electronic transmissions may constitute an acknowledgement or acceptance of service in writing. [ 10 ] It is important to note that I do not rely upon Rule 11.21 with respect to this decision. That Rule states: Service by electronic method

11.21(1) A document, other than a commencement document, may be served by electronic method on a person who has specifically provided an address to which information or data in respect of an action may be transmitted, if the document is sent to the person at the specified address, and (

a) the electronic agent receiving the document at that address receives the document in a form that is usable for subsequent reference, and (

b) the sending electronic agent obtains or receives a confirmation that the transmission to the address of the person to be served was successfully completed.

(2) Service is effected under subrule (1) when the sending electronic agent obtains or receives confirmation of the successfully completed transmission.

(3) In this rule, “electronic” and “electronic agent” have the same meanings as they have in the Electronic Transactions Act . [ 11 ] I am not relying upon this Rule as it has no application to service of a commencement document. Furthermore, in this case the proof of service relied upon is not from the electronic service provider, such as Microsoft Outlook, but in fact is a written acceptance or acknowledgement from the Defendant herself. [ 12 ] For the guidance of the Bar and the Clerks of the Court that must have a clear understanding as to when an order validating service is not required, I state the following: (

a) An order validating service will not be required where the Plaintiff submits to the Clerk of the Court an affidavit of service which: (

i) states that the Defendant was served, the method of service and the date of service (and if the Defendant is outside of Alberta, stating the real and substantial connection between Alberta and the claim); and (ii) attaches as an exhibit (which must be referenced in the narrative of the affidavit) a written document from the Defendant whereby the Defendant acknowledges or accepts service of the commencement document; (

b) Any written document coming from the Defendant to the Plaintiff or the Plaintiff’s counsel will suffice. [2] It could be an email, a text message, a social media communication or a handwritten note. Reference to that written communication from the Defendant in the narrative of the affidavit is not enough. That communication must be attached as an exhibit to the supporting affidavit; (

c) A confirmation from an electronic transmission service alone, such as Microsoft Outlook is not sufficient, in and of itself; (

d) If a Defendant only acknowledges or accepts service verbally, that is not sufficient, in and of itself; (

e) The written acknowledgement cannot come from an agent on behalf of the Defendant. In such a case, the Plaintiff must apply for an order validating service under Rule 11.27; (

f) If the Defendant agrees in writing to accept service of the Statement of Claim in a certain fashion, the Plaintiff must provide evidence that the Statement of Claim was in fact served in that fashion and attach as an exhibit that transmission; (

g) If the Clerk of the Court has any doubt as to whether the evidence of service submitted to the Court is satisfactory, the Clerk may either refer the request for a noting in default or default judgment to an Applications Judge for consideration or exercise their own discretion in advising the submitting party that an order validating service will be required; (

h) Nothing in this decision alters requirements for service that must comply with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, concluded at the Hague on November 15, 1965; and (

i) These guidelines apply to service of a commencement document other than a Statement of Claim, with appropriate modification. [ 13 ] In this case, the Plaintiff’s application for an order validating service is dismissed. The Clerk of the Court is directed to treat the evidence provided as sufficient proof of service upon the Defendant of the Statement of Claim. Heard on the 7 th day of November, 2022. Dated at the City of Edmonton, Alberta this 17 th day of November, 2022. B.W. Summers A.J.C.K.B.A.

Appearances in this Desk Application: Coralie Mohr Witten LLP for the Plaintiff No appearance for the Defendant