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CIVIL PROCEDURE - Statement of claim - Service - Time for

Tuesday, April 06, 2021 @ 9:17 AM  

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Appeal by a defendant from an order refusing to set aside an extension of time for service of the plaintiff’s statement of claim. The plaintiff owned and operated a lodge for senior citizens that was under renovation. The appellant provided security services during the renovations. In December 2017, the plaintiff sued nine defendants for damages to compensate it for losses suffered in a 2015 fire at its lodge. The claim did not initially name the appellant as a defendant, as it instead listed six unknown corporations and individuals. In December 2018, the plaintiff applied for an ex parte order extending the time for service by three months due to an inability to effect service on the defendants. A master granted the relief sought. The appellant was served with the claim at the end of the three-month extension. Approximately six months later, the appellant applied to set aside the order extending time for service on the basis he had discarded any records related to the fire. A master refused the relief sought and a chambers judge upheld the refusal on appeal. The appellant appealed to the Court of Appeal.

HELD: Appeal dismissed. The chambers judge erred in holding that the destroyed records related to the fire did not constitute evidence, as they were records prepared in the ordinary course of business that were admissible as a common law exception to the hearsay rule. However, the evidentiary record and the chambers judge’s reasons supported the decision rendered. It was open to the chambers judge to find that the delay in serving the statement of claim was not a stalling tactic. The chambers judge recognized a degree of prejudice to the appellant arising from the destruction of records but noted the existence of statements provided by the appellant and his employee provided to an insurance adjuster. The reasons demonstrated that the chambers judge balanced the competing interests in upholding the order granting the extension of time to serve the statement of claim.

Scott (c.o.b. High Alta Security Services) v. Westwinds Communities, [2021] A.J. No. 134, Alberta Court of Appeal, M.S. Paperny, F.F. Slatter and E.A. Hughes JJ.A., February 1, 2021. Digest No. TLD-April52021001