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 learn more about your specific case.
We hope you have enjoyed our series on extension of time for service and that you have learned something over the past few weeks. We’ve looked at several different examples of cases in which the service deadline was missed, the parties that might be responsible for this, and what constitutes a “special or extraordinary circumstance” in the eyes of a judge, as well as given helpful tips along the way to avoid getting into these situations yourself.
If you haven’t familiarized yourself with our fourth and final case on this topic, review the facts and question of the week here.
When it comes to Kamboh v. Chambers, 2016 ABQB 711, there was indeed a circumstance that merited extending the time to serve the statement of claim, and so the correct answer this week is b).
In this case, the Plaintiff’s counsel experienced difficulties when attempting to serve a statement of claim and filed a draft order for an extension of time with the Clerk of the Court two days before the deadline. When the firm reached out to the Clerk’s office two months later for an update on the file, it could not be found, leading to the discovery of the documents on top of a filing cabinet.
Rule 3.37(1)(c) grants the court the ability to extend the time to serve a statement of claim beyond the one-year period laid out in Rule 3.26, for instances where “special or extraordinary circumstances exist resulting solely … from the conduct of a person who is not party to the action.”
Although it was found after the initial service period had expired, the application for an extension of time pursuant to Rule 3.26 was filed with the Clerk of the Court on time. The fact that it was misplaced in the Clerk’s office is not the fault of the Plaintiff or their counsel. As Master Schulz put it in her decision, “The Clerk is clearly not a party to the action. I am satisfied that this set of circumstances falls within the meaning of ‘special or extraordinary’ as set out in this rule.”
The difficulty that arose regarding the initial attempts to serve the statement of claim on time is a common problem that many firms experience, and depending on the specific circumstances, this may not have constituted a special or extraordinary circumstance on its own. However, the event of documents getting lost by the Clerk without being filed was unorthodox enough to warrant an extension of time to service the statement of claim pursuant to Rule 3.37(1)(c).
PRACTICE TIP
Master Schulz’s parting words of advice in this case are as follows: “In future, it would be wise for out-of-province counsel [in this instance, counsel was from Saskatchewan] to retain a law firm as an agent rather than relying on a process service. Presumably the law firm will understand the urgency of such applications and follow through on the application in a timely manner.”
It also pays to have a phone number for the Clerk’s office handy and to make reasonable use of it if an application, especially an urgent one, seems to be taking too long to be scheduled.
Your lawyer made a mistake. Is it malpractice?
Expired limitation periods are not the only risk faced by civil litigators. Missing the one-year service period after a statement of claim has been filed is equally detrimental. While most unsuccessful cases or applications occur despite a civil litigator’s reasonable efforts or for reasons beyond the lawyer’s control, they occasionally result from legal malpractice.
Have you or someone you know possibly suffered a loss due to the negligence of a lawyer or former lawyer? Carruthers Law can help identify how to repair the damage or, alternatively, help determine whether you should pursue a professional malpractice claim. Contact us for a complimentary consultation to discuss your situation.