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.
Our second case on the topic of extension of time for service involves a combination of factors that may or may not constitute special or extraordinary circumstances within the meaning of rule 3.27(1)(c). Please read Monday’s post introducing the facts of the matter here if you haven’t yet.
Once again, there were no such circumstances found by the Justice, meaning an extension of time for service was not granted and the answer to this week’s question is c).
In the case of Galandy v. Edward’s Moldings and Painting Ltd., 2018 ABQB 251, Calgary-based Homes by Us Ltd. was the general contractor for the Galandy’s new home, which was destroyed in a fire while it was being built. As a result, the parties sued several defendants, including Top-Notch Projects Inc., a tiling and flooring subcontractor.
The application at hand focuses on the plaintiffs’ efforts to serve Top-Notch Projects in particular. According to the plaintiffs, there was a purported evasion of service on the part of Top-Notch when, after attempting to send the statement of claim to them by registered mail, it was returned unclaimed. Additionally, the lawyer responsible for the file at the firm retained by the plaintiffs left to go on bed rest shortly before the claim was set to expire.
Here is the law regarding time for service of a statement of claim:
3.26(1) A statement of claim must be served on the defendant within one year after the date that the statement of claim is filed unless the Court, on application filed before the one-year time limit expires, grants an extension of time for service.
(2) The extension of time for service under this rule must not exceed 3 months.
(3) Rule 13.5 [Unless the Court otherwise orders or a rule otherwise provides, the parties may agree to extend any time period specified in these rules] does not apply to this rule or to an extension of time ordered under this rule.
In other words, an application for an extension under Rule 3.26(1) must be filed before the one-year time limit expires.
3.27 (1) The Court may, at any time, grant an extension of time for service of a statement of claim in any of the following circumstances:
…
(c) special or extraordinary circumstances exist resulting solely from the defendant’s conduct or from the conduct of a person who is not a party to the action.
The time limit set on service is meant to “eliminate procrastination and delay,” according to the decision. “This suggests that the general exception contained in rule 3.27(1)(c) should be limited, and the words ‘special and extraordinary circumstances’ should be interpreted narrowly.”
Despite what may be implied by the attempt of service being returned as unclaimed mail by Top-Notch, the Justice ruled that this one-time event did not amount to an evasion of service. The plaintiffs argued that Top-Notch would have at the very least been aware of a legal document requiring a signature, but they did not submit any Canada Post tracking information that would have confirmed this argument, meaning there was no evidence that a notice was left at the Top-Notch office. It would be “a leap too far” to equate this circumstance with an outright refusal of the statement of claim, according to the Justice.
The other possible circumstance that may have granted an extension was the file being reassigned to a new lawyer just after the deadline to serve the statement of claim had expired. There were, however, a number of actions the firm could have taken between the return of the unclaimed registered mail and the expiry date of the claim. This includes another attempt of service under the rules, an application for substitutional service by another method, or, as Rule 3.26(1) details, an application for an order extending the time to serve filed before the deadline. “There is no evidence of instructions given to another lawyer … to attend to service, which could have easily been done before or after the end of August, up to the service deadline,” the decision continues.
Therefore, the plaintiffs were unable to prove that any special or extraordinary circumstances had resulted from the conduct of Top-Notch and the application was dismissed. Neither the unclaimed registered mail nor the maternity leave of the lawyer initially assigned to the file created a situation that caused the plaintiffs to miss the service deadline, and no further efforts were made to ensure that service was completed on time.
Practice Tip
As the Court of Appeal cautioned in McGowan v. Lang, 2015 ABCA 217, “a lawyer acting for a plaintiff ought to file the statement of claim in a timely fashion and thereafter proceed to effect service of the statement of claim upon the defendant(s) as expeditiously as possible.” As seen in this case, lawyers who serve a filed claim within the last few months of the one-year service period do so at their own (and their clients’) risk. Circumstances such as unclaimed registered mail combined with the distractions associated with medical leave can cause a file to slip through the cracks.
Furthermore, law firms would do well to set up a reliable method of monitoring service and other deadlines, thus filling in these cracks. One example would be assigning an office manager or dedicated partner to routinely generate pending deadline reports and take responsibility for ensuring that outstanding deadlines are met. Had such a procedure been in place here, the law firm would have ensured the lawyer was not serving the claim at the last minute, and the unclaimed registered mail would have been caught in time to attempt service again or apply for an extension.
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.