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.
This week is the final installment in our series about extension of time for service. After reading through each example on this topic that we have analyzed over the past month, any lawyer is sure to understand the rationale behind the decisions of judges in these matters and know what to watch out for to avoid costly mistakes. Here is what you need to know this time around:
A statement of claim was filed on May 28th, 2015. It became difficult to fulfill service of this statement of claim within the one-year issuance period.
On May 26th, 2016, with just two days to go before the deadline, the Clerk of the Court filed two affidavits to the action, one sworn on March 15th and the other on May 25th.
On July 27th, 2016, the aforementioned affidavits, as well as a draft order for an extension of time for service, were found on top of a filing cabinet in the Clerk’s office. The events leading up to this between May 26th and July 27th were unknown, and the court file did not indicate that a without notice application was filed along with the affidavits.
On August 3rd, 2016, the legal assistant at the firm retained by the Plaintiff – which was located in Saskatchewan – swore an affidavit stating she sent the two affidavits, along with a without notice application and a draft order to a process server in Edmonton, on May 25th.
Upon contacting the Clerk’s Office on July 27th for an update on the status of the application, the assistant was informed that there was no such application on file. It was presumably due to this phone call that the documents were ultimately found in the Clerk’s office and the matter was referred to a judge.
However, the explanatory affidavit of August 3rd containing these details wasn’t brought to the judge’s attention until December 7th, 2016, when the Chambers Office received a letter with a new draft order. No explanation was provided by the Clerk’s office for such a delay.
Come back on Friday for the solution and a brief explanation of the case in question.