By Ian Carruthers and Noel Harper
DISCLAIMER: This blog is intended to inform the reader about how the law was applied in a particular case. It should not be taken as advice regarding the outcome of any other case, even one that may have similar facts. The Court’s decision will depend on the facts of each case. Please call 1-844-210-9511 or visit carrutherslaw.ca if you would like to know more about your specific case.
Today, we will be introducing you to the third case in our series on the extension of time for service rule. This case involves an error in the serving process resulting in the expiry of a statement of claim. Here is the timeline of events:
On May 18, 2004, a serious motor vehicle accident took place resulting from reckless stunt driving and racing. One person was killed in the accident, and another suffered permanent injuries.
On May 16, 2006, statements of claim were issued for both individuals affected by the accident. The plaintiffs instructed counsel to serve the statements of claim in both actions.
On October 30, 2006, a process server responsible for completing this task deposed that he had served one of the defendants by leaving a copy of the statement of claim with them at an address in Valleyview, Alberta, swearing an affidavit of service to this effect on November 2, 2006.
On December 20, 2006, the defendant in question, who was named as such in both actions, was noted in default. It would later come to light that the person who was served on October 30 in Valleyview was not the defendant, as the process server thought, but was the current resident of the defendant’s former address.
In October of 2007, the defendant received a letter from the Administrator of the Motor Vehicle Accident Claims Fund, advising him for the first time of the lawsuit and that they had been noted in default. This was well after the one year issuance deadline for the statement of claim to be served as required by Rule 3.26(1), which was May 16, 2007.
On July 29 and August 29 of 2008, the defendant swore affidavits saying they were never served with a statement of claim.
Come back on Friday for the solution and a brief explanation of the case in question.