Telus Communications Inc v Lyndale Plumbing & Gasfitting Ltd, 2023 ABCJ 185

In the Alberta Court of Justice Citation: Telus Communications Inc v Lyndale Plumbing & Gasfitting Ltd, 2023 ABCJ 185 Date: 20230824 Docket: P2190304045 Registry: Edmonton Between: Telus Communications Inc Plaintiff - and - Marcel Preville, Nola Preville, Timberjack Building Supplies Ltd, Promark-Telecon Inc, Lyndale Plumbing & Gasfitting Ltd, Dirt Works Bobcat Services Ltd, John Doe, ABC Corporation and Town of Edson Defendants Reasons for Decision of The Honourable Justice S.L. Corbett I.

Introduction [ 1 ] The Plaintiff sues a number of Defendants in this action for $45,000 related to damage to the Plaintiff’s underground cables allegedly caused when sewer line repairs were effected on one of the Defendants’ property. [ 2 ] The Plaintiff brought an Application for an Order deeming service of the Civil Claim filed on November 5, 2021, on the Defendant, Lyndale Plumbing & Gasfitting Ltd. (“Lyndale”), effective as of October 31, 2022. [ 3 ] The Plaintiff filed an Affidavit of Service of Commencement Documents pertaining to service of Lyndale on March 24, 2023.

The Affidavit sets forth that the affiant served Lyndale by leaving the Civil Claim and blank Dispute Note at Lyndale’s registered office on October 31, 2022, using the registered office address set out in a Corporate Registry search dated November 2, 2021. There is no question that the address where the documents were left was the registered office of Lyndale in November 2021. The Corporate Registry search identifies Dale Thorson as a Director and Shareholder of Lyndale. There is no reference to Kendra Motkoski. [ 4 ] The Plaintiff subsequently discovered that Lyndale has been dissolved.

The Certificate of Dissolution sets out that Lyndale was voluntarily dissolved on June 13, 2022. [ 5 ] An Agent for Service is identified on the Certificate of Dissolution; however, no address is indicated for the Agent for Service. The Agent for Service’s status is stated to be “Inactive” as of June 13, 2022, the same date as the dissolution date. [ 6 ] Dale Thorson is identified as an “Active” Director and Shareholder. Another individual is identified as an “Inactive” Director and Shareholder.

It appears this individual ceased being a director in 2010. [ 7 ] Kendra Motkoski is identified as an “Active” Record Keeper. Ms. “Motkoske” [sic] is reported to be an “Agent of Corporation” on the last page of the Certificate of Dissolution following the words “Registration Authorized by”.

[ 8 ] Ms. Motkoski had some communications with Plaintiff’s Agent/Student-at-Law (“SAL”) in February 2023. Plaintiff’s SAL told Ms. Motkoski that she “should bring with [her] the Statement of Claim which [she] confirmed [she] received during [their] call” if she decided “to seek legal advice” in an email of February 17, 2023. A legal assistant at the Plaintiff’s law firm swore an Affidavit attesting to this hearsay exchange between Plaintiff’s SAL and Ms. Motkoski on February 17, 2023.

Plaintiff’s SAL did not swear the Affidavit, although she was a party to the telephone conversation that she is relying on to assert that Ms. Motkoski, “Agent for Service for the Corporation”, has the Civil Claim in her possession, and that “service to the registered office brought the Civil Claim to the attention of Ms. Motkoski”. The communications between Plaintiff’s SAL and Ms.

Motkoski took place approximately 3 months after service was purportedly effected on Lyndale’s previous registered office, and after the one year for service of the Civil Claim had expired [1] . [ 9 ] The Plaintiff asks for an Order deeming service of the Civil Claim on Lyndale effective as of October 31, 2022 [2] . [ 10 ] Ms.

Motkoski has attended the Plaintiff’s Application via WebEx as the Plaintiff served her with the same, and she has made submissions opposing the Plaintiff’s Application. [ 11 ] For the reasons that follow, I dismiss the Plaintiff’s Application to deem service of the Civil Claim effective as of October 31, 2022, and I direct that no further proceedings may be taken against Lyndale in this action because the Plaintiff failed to effect service within the requisite one year. [3] II. Issues and Brief Answers [ 12 ] How is service of a Civil Claim on a dissolved corporation effected in the Court of Justice?

Answer: The appropriate process to follow when serving a dissolved corporation with a Court of Justice action commenced before its dissolution is to effect service on a director or directors shown in the last Notice of Directors filed with the Registrar. [ 13 ] Did the Plaintiff properly effect service on a Director of Lyndale as required by the BCA ? Answer: No. The Plaintiff did not properly effect service of the Civil Claim on an individual director of Lyndale following its dissolution. [ 14 ] Despite the Plaintiff's failure to properly effect service, should service be deemed valid? Answer: No. Ms.

Motkoski was not an appropriate person to be served with the Civil Claim against Lyndale, and there was no evidence that Lyndale had service or notice of the action with the required one-year period. [ 15 ] What are the consequences of the Plaintiff's failure to properly serve Lyndale within the one-year period? Answer: The Plaintiff may not take any further proceedings in this action against Lyndale. III. How is service of a Civil Claim on a dissolved corporation effected in the Court of Justice? [ 16 ]

Section 42 of the Court of Justice Civil Procedure Regulation [4] (“ Regulation ”) deals with service of commencement documents on corporations.

Section 42 says that service may be effected by: a. serving a director, b. serving it on an individual who appears to have management or control responsibilities in respect of the corporation, or c. by leaving it with or sending it by recorded mail to the corporation’s registered office. [ 17 ]

Section 256 of the Business Corporations Act [5] (“ BCA ”) also sets out how a corporation may be served, including serving its registered office or its agent for service. [6] [ 18 ] In this case, the Plaintiff purported to serve the registered office of a corporation that had been dissolved 4 months earlier. [ 19 ] Sections 211, 212, 213 and 214 of the BCA [7] all state that a corporation “ceases to exist on the date shown in the certificate of dissolution”. [ 20 ] Lyndale ceased to exist, therefore, on June 13, 2022.

Lyndale was no longer a “body corporate” (Section 1((i)) or a “corporation” (Section 1(l)) under the BCA [8] . [ 21 ] If Lyndale ceased to exist, the Plaintiff’s purported service on its former registered office on October 31, 2022, is not valid either pursuant to

Section 42 of the Regulation or pursuant to

Section 256 of the BCA . [ 22 ]

Section 227 of the BCA [9] helps parties who have commenced an action against a dissolved corporation before it was

dissolved. Subsection (3) sets out that: “Service of a document on a corporation after its dissolution may be effected by serving the document on a person shown in the last notice filed under

section 106 or 113”. Sections 106 and 113 [10] refer to the notice of directors required to be filed with the Registrar. Accordingly,

Section 227 permits a party to serve a director of a dissolved corporation after its dissolution. [ 23 ] The only director identified in the corporate registry search is Dale Thorson. The Plaintiff did not produce a copy of the last Notice of Directors filed with the Registrar. [ 24 ] Dale Thorson is an individual, and

Section 41 of the Regulation [11] sets out how an individual may be served with a Civil Claim in the Court of Justice. The Plaintiff took no steps to serve Dale Thorson as required in

Section 41 of the Regulation and

Section 227 of the BCA . [ 25 ] The Certificate of Dissolution identified another individual as an “inactive director”. Again, the Plaintiff took no steps to serve this individual as required by

Section 41 of the Regulation and

Section 227 of the BCA . It is unlikely that such an attempt would have been effective as the inactive director appears not to have been a director of Lyndale since 2010. [ 26 ] The Plaintiff, in its written submissions dated June 9, 2023, acknowledges that “service of the Civil Claim did not comply with Section 227(3) of the BCA ”. [ 27 ] Although not in evidence before me, Ms. Motkoski advised that Lyndale was her late father’s company. It was not clear whether Mr. Thorson was Ms. Motkoski’s late father.

If he was her late father, the Plaintiff could have availed itself of the provisions of Rules 11.6 or 11.7 of the Alberta Rules of Court to serve either a personal representative or litigation representative of a deceased individual. [12] Again, the Plaintiff took no steps to properly serve Ms. Motkoski as contemplated in the Rules of Court (accessible where the Court of Justice has no specific rules as to service of a deceased party), or any personal or litigation representative if Mr.

Thorson was her deceased father. [ 28 ] While Section 227(3) of the BCA is permissive as opposed to mandatory in its language (“may” as opposed to “shall”), the BCA does not offer any alternate means of serving a dissolved corporation. In my view, the appropriate process to follow when serving a dissolved corporation with a Court of Justice action commenced before its dissolution is to effect service on a director or directors shown in the last Notice of Directors filed with the Registrar.

For example, if that director is an individual, then the Regulation for serving an individual applicable in the Court of Justice should be followed. As another example, if that director is a corporation, then the Regulation for serving a corporation in the Court of Justice should be followed. If the Regulation does not stipulate a means of service for the legal entity in question, the parties may ask that the Court of Justice apply the Alberta Rules of Court [13] . IV. Did the Plaintiff properly effect service on a Director of Lyndale as required by the BCA ? [ 29 ] The Plaintiff did not serve Mr. Thorson. Mr.

Thorson is the only Director identified in the Corporate Registry search dated November 2, 2021, and the only active Director identified in the Certificate of Dissolution. I find that the Plaintiff did not properly effect service of the Civil Claim on an individual director of Lyndale following its dissolution. Instead, the Plaintiff relied on a year-old corporate registry search, and purported to serve a dissolved corporation at its former registered address for service. This is not proper service of a dissolved corporation as Lyndale no longer existed as a corporate body at the time of the purported service. V.

Despite the Plaintiff’s failure to properly effect service, should service be deemed valid? [ 30 ] Section 48(1) of the Regulation [14] provides the Court with the discretion to deem service to be valid even if it does not comply with

Part 12. The Court must be satisfied that the document came to or was likely to have come to the attention of the party being served.

It is important to remember that the party here is Lyndale. [ 31 ] The Plaintiff relies on Post v Kellogg Brown & Root (Canada) Company [15] to support the principle that the purpose of service is to give notice to a party, and if the document actually reaches the party, that purpose has been satisfied, regardless of the “precise manner” in which it has happened. [ 32 ] In Post , the Court clarifies that it is not suggesting that “personal service occurs without the intended recipient’s having knowledge of the documents”. [16] This is an important limit which recognizes the distinction between mere knowledge and notice. [17] A party must understand that its legal rights are being engaged. [18] In the Redecopp case, the application to validate service failed because the Statement of Claim was never served on the defendant using any method contemplated in the Rules of Court [19] . [ 33 ] The Plaintiff argues that Ms.

Motkoski’s possession of the Civil Claim in February 2023 – simply put, that she had a copy of it – means that Lyndale was given notice of the action. The Plaintiff asserts that notice was effected within the requisite year because the Plaintiff served Lyndale’s former registered office, and because the Plaintiff asserts that Ms. Motkoski “was likely still receiving mail from the registered office within a timely manner when the Civil Claim was served”. [20]

[ 34 ] The Plaintiff argues that Ms. Motkoski “was likely the last person with responsibility for Lyndale”. The Plaintiff’s argument is grounded in an allegation that Ms. Motkoski was Lyndale’s “Agent”, and that she was appointed its Record Keeper on dissolution. [21] [ 35 ] The Plaintiff asserts that Ms. Motkoski was Lyndale’s “Agent” because a Ms. “Motkoske [sic]” is reported as “Agent of Corporation” on the last page of the Certificate of Dissolution following the words “Registration Authorized by”. The Plaintiff argues that “Ms.

Motkoski” was “likely the last person with responsibility for Lyndale”, and because “she assumed responsibility for the dissolution of Lyndale, she was responsible for the affairs of the dissolved company going forward”. There was no evidence before me that Ms. Motkoski assumed any responsibility for the affairs of Lyndale as the person who filed the Certificate of Dissolution. The Plaintiff tendered no statutory authority or case law supporting the assertion that a person or entity filing a Certificate of Dissolution with the corporate registry becomes responsible for the affairs of a dissolved company.

In the absence of evidence or any law, I am unable to accept this argument. [ 36 ] The Plaintiff asserts that Ms. Motkoski is identified as an Active Record Keeper on the Certificate of Dissolution, and that her role as a Record Keeper made her the most appropriate person to serve the Civil Claim on.

Section 226 of the BCA [22] sets out the role of a record keeper of a dissolved corporation. The BCA does not say that functioning as a record keeper makes one responsible for the affairs of the corporation, or makes one the appropriate person to serve. Had the legislature intended that record keepers of dissolved corporations would be so responsible; the BCA would have directed that. Record keepers are responsible for keeping the documents and records of a dissolved corporation.

That does not make record keepers an agent of the corporation, nor does it make record keepers responsible for the dissolved corporation. [ 37 ] The Plaintiff suggests that it had no ability to serve Lyndale in circumstances where the sole Director of a dissolved corporation has passed away. I have already referred to the relevant Rules of Court provisions which provide ample relief to a plaintiff who seeks to serve the personal or litigation representative of a deceased individual.

Had the Plaintiff properly followed the Regulation and the Rules of Court , it would have been able to properly effect service on Lyndale. Its litigation against Lyndale is not “being block[ed]” as argued. Rather, the Plaintiff is being required to properly comply with the Regulation and the Rules of Court as all litigants are expected to do. [ 38 ] The Plaintiff’s written submissions allege facts not contained in the affidavits filed with the court on this application.

It is the applicant’s responsibility to put its best case forward, and I will not accept factual assertions in written submissions that were not before the court. If the Plaintiff wished to file a supplementary affidavit, I would have considered that on an application with notice. No such application was made. [ 39 ] I find that the Plaintiff has not established that Ms. Motkoski was an agent or representative of Lyndale. She was not a Director of Lyndale while it was an active corporation, and her function post dissolution appears to have been restricted to being a BCA

Section 226 Record Keeper and the person filing the Certificate of Dissolution. She was not an appropriate person to be served with the Civil Claim against Lyndale in the absence of any evidence that she was a personal or litigation representative of her deceased father [23] . I find that the Plaintiff failed to give notice to Lyndale, and I am not satisfied that the Civil Claim came to or was likely to come to Lyndale’s attention. [ 40 ] If I am incorrect in my findings regarding purported service of Lyndale through Ms. Motkoski, the Plaintiff is only able to establish that Ms.

Motkoski was aware of the action against Lyndale in February 2023. The Civil Claim was filed in November 2021, and the Plaintiff was required to serve the Civil Claim within one year. The Plaintiff speculates that “Ms. Motkoski was likely still receiving mail from the Registered Office within a timely manner when the Civil Claim was served”. There was no evidence supporting that assertion. Instead, the evidence was that Ms. Motkoski had a copy of the Civil Claim approximately 3 months after the time for service expired. There was no evidence that Ms.

Motkoski or anyone “representing” Lyndale had service or notice of the action within the required one-year period. [ 41 ] I find that the Plaintiff is unable to establish that its Civil Claim came to or was likely to come to Lyndale’s attention within the year required to effect service. [ 42 ] The Plaintiff’s Application for an Order deeming service of the Civil Claim on Lyndale effective as of October 31, 2022 is dismissed. VI.

What are the consequences of the Plaintiff’s failure to properly serve Lyndale within the one-year period? [ 43 ] The consequences of failing to serve a party within one year after the Civil Claim is filed are set out in

Section 4 of the Regulation . [24] If a defendant is not served within the year (and no extension of time for service is sought or granted), then subsection (4) sets out that “no further proceedings may be taken in the action” against that defendant. [ 44 ] The Plaintiff’s Civil Claim was filed November 5, 2021. No extension of the time for service was sought by the Plaintiff. The Plaintiff was required to serve the Civil Claim on Lyndale by November 5, 2022. [ 45 ] I have dismissed the Plaintiff’s Application to deem service of the Civil Claim on Lyndale effective as of October 31, 2022.

Accordingly, the Plaintiff has failed to serve the Civil Claim on Lyndale within one year, and I direct that no further proceedings may be taken in this action against Lyndale. VII. Conclusion

[ 46 ] The Plaintiff’ Application for an Order deeming service on Lyndale effective as of October 31, 2022, is dismissed. The Plaintiff may not take any further proceedings in this action against Lyndale. [ 47 ] Costs of this Application are awarded in favor of Ms. Motkoski in the sum of $380.00 pursuant to the Tariff of Recoverable Costs in effect when this Application was heard. Heard on the 1 st day of June, 2023. Dated at the City of Edmonton, Alberta this 24 th day of August, 2023. S.L. Corbett A Justice of the Alberta Court of Justice Appearances: Maddison Canuel, Agent/Student-at-Law for the Plaintiff Kendrea Motkoski Record Keeper for the Defendant Lyndale Plumbing & Gasfitting Ltd