The Alberta Court of Appeal looked at the issue of extending time for service of a Statement of Claim. Generally a Statement of Claim must be served (delivered basically) to the defendant within 1 year of the time it is filed with the Court. Rule 3.26, which allows for extending that time says:
(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.
In the Case of Scott v Westwinds Communities, 2021 ABCA 30 the Alberta court of Appeal looked closely at rule 3.26, saying at paragraph 37:
While not exhaustive, the general principles for a Rule 3.26 application are these:
1. A Rule 3.26 application calls upon a court to exercise its discretion. The Rule does not provide a plaintiff with a unilateral right to a three month extension.
2. The Rule is not only for the benefit of the plaintiff, as identified in Oberg, but also the defendant. It is for the benefit of the defendant in that it establishes a further type of limitation period, over and above the Limitations Act, RSA 2000, c L-12, to know if one must prepare to defend against a claim and assemble a defence. The passage of time can make this more difficult.
3. The application must be supported by an affidavit or other evidence. See Rules 6.3 and 6.11.
4. The affidavit or other evidence should set out what attempts, if any, have been made to serve the defendant and explain the reason or reasons for the lack of service within the 12 months. This does not mean there is an absolute rule that some attempt to serve must be made before bringing an application under Rule 3.26. We agree with the observations of Master Smart at para 5 of Wardill that: “Simply put the evidence provided should state ‘why you need it and what have you done?’ ... It makes no sense to have a deadline for service within 12 months if extensions are granted as a matter of course with not even the barest threshold of evidence required.”
5. The purpose of the renewal cannot be a stalling tactic.
6. Prejudice to the defendant, if any, is a factor to consider.
Extending the time for service of a Statement of Claim can be risky- the courts don't always grant these orders. If you require advice in this regard please feel free to contact us.
The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.
