By Ian Carruthers and Noel Harper
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This week’s installment of our series on the extension of time for service rules is similar to last week’s example, in which an attempt to serve a statement of claim was made and yet it was not received by the defendant within the one-year issuance period. Review the facts of this case and submit your answer to our weekly question (if you haven’t already) by heading over to Monday’s post here.
Unlike our first two cases on this topic, there was found to be a special or extraordinary circumstance that merited an extension, and the correct answer to Monday’s question is b).
In the case of Sanderson Estate v. Potter, 2012 ABQB 593, the plaintiffs instructed counsel to serve two statements of claim against a defendant. A process server mistook the identity of the defendant, serving the statement of claim to someone else, and then gave an erroneous affidavit of service stating that it was served to the correct individual. This attempt of service took place within the issuance period, but it was ultimately incomplete, and the defendant did not become aware of the lawsuit until another year afterward. Therefore, the statement of claim was not served in time.
As Rule 3.27(1) states:
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:
- a) if a defendant, anyone purporting to be a defendant, or a lawyer or other person purporting to negotiate on behalf of a defendant, has caused the plaintiff or the plaintiff’s lawyer to reasonably believe and to rely on the belief that
(i) the defendant has been served,
(ii) liability is not or will not be contested, or
(iii) a time limit or any time period relating to the action will not be relied on or will be waived;
(b) if an order for substitutional service, an order dispensing with service or an order validating service is set aside;
(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.
Rules 3.26, 3.27, and 3.28 “impose a strict and mandatory limit on the service of a statement of claim and only the rare exceptions listed in Rule 3.27 alter the limit on service,” according to the decision. The Judge concluded that she had the discretion to renew the statement of claim, but as far as exercising that discretion, it could only be done if the specific statutory requirements under these rules were met.
The onus of proving one of the three exceptions in Rule 3.27(1)(a) was on the plaintiff. There was no evidence provided that the individual alleged to have been served – the current resident of the defendant’s former address in Valleyview – “did anything to cause the plaintiff or their lawyer to believe that [the defendant] had been served.”
As an agent of the plaintiffs and their counsel, the process server ultimately caused them to reasonably rely on the belief that the defendant had been served, meaning Rule 3.27(1)(a) did not apply. The same is true for Rule 3.27(1)(b), for there was no order for substitutional service. This meant that only Rule 3.27(1)(c) applied, which is meant to “ensure that a plaintiff takes timely action in pursuing a claim and to encourage expeditious litigation.”
The lack of service was not the fault of the plaintiff or their counsel, who were replying upon the affidavit of service of their agent, the process server, nor was it the fault of a defendant or purported defendant. The process server’s negligence resulted in the defendant not being served while the statement of claim was still in force, and they fulfill the role of “a person who is not a party to the action” within Rule 3.27(1)(c).
Furthermore, there was no evidence presented of neglect by the plaintiffs nor prejudice experienced by the defendant. Therefore, the Judge did exercise her discretion to permit the renewal of the statement of claim, giving the plaintiffs another 30 days to serve the defendant.
A process server misidentifying a defendant is a common occurrence, according to the Judge, so this was not a special or extraordinary circumstance on its own. The combination of the process server’s error and the plaintiff’s reliance on the erroneous affidavit of service satisfied Rule 3.27(1)(c).
PRACTICE TIP
The Judge found no negligence or carelessness on the part of the plaintiff or counsel for relying on the erroneous affidavit of service. She did point out that process servers are commonly used when personal service is required, and that it is not uncommon for the process server to have difficulty with positively identifying someone he or she serves.
In some instances, defendants are easy to find and acknowledge service readily. However, sometimes a defendant may not be personally known, may have recently moved, could be living “off the grid” or are simply uncooperative. There are several proactive steps lawyers can take in these situations to avoid a case of mistaken identity:
- Seek and provide their process server with as much identifying information as can be found, rather than relying solely on an address that may or may not be current.
- Obtain and provide the process server with a photograph of the defendant if one is available.
- Serve a defendant by more than one method (e.g. in person, registered mail, email, social media, etc.) so that if one method fails, the others may still be successful.
- Ask the process server to include in the affidavit of service steps taken to confirm the identity of the defendant – the lawyer should apply a skeptical eye and common sense to this information to identify any uncertainties or risky assumptions on the part of the process server.
- Be in direct communication with the defendant shortly after service to ensure he or she was actually served and is aware of the claim.
Your lawyer made a mistake. Is it malpractice?
As seen in this case, an expired limitation period is not the only risk civil litigators face. 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.