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CORPORATIONS - Capacity

Thursday, May 17, 2018 @ 8:37 AM  


Lexis Advance® Quicklaw®
Appeal by English and Raydan Transport from a decision dismissing their application to revive Raydan more than five years after Raydan was struck from the corporate registry. The appellant were sued in an action commenced in 2011. In the statement of claim, the plaintiff also alleged that Raydan had been struck from the registry in 2009. In their statement of defence filed in 2011, the appellants admitted that fact. The appellants then applied to the chambers judge in 2017 for an order temporarily reviving Raydan for five years for the purposes of the ongoing litigation. The appellants argued that English, Raydan’s sole director, was never personally served by the corporate registry with the notice of intention to strike Raydan and further, once struck, the corporate registry failed to notify English that Raydan had been struck. Relying on the publication in The Alberta Gazette and on the admission in the statement of defence, the chambers judge was satisfied English knew that Raydan had been struck and dismissed the application to revive Raydan.

HELD: Appeal dismissed. The uncontradicted evidence was not that neither Raydan nor English ever received notice. In their statement of defence, the appellants did not assert they were unaware that Raydan had been struck. While there had been no evidence that English had been personally served with notice, the Business Corporations Act did not require personal service on the directors but only service by ordinary mail. There was no evidence that Raydan did not receive the registrar’s notice. There was no evidence regarding English’s records retention habits or even if he kept the corporate registry up to date with his current address throughout the period of incorporation. On a plain reading of s 208(1.1) of the Business Corporations Act, revival was no longer permitted after the expiry of five years from the date of dissolution. The chambers judge was correct in refusing to revive Raydan, given that more than five years had passed since the corporation was dissolved.

English v. Alberta (Service), [2018] A.J. No. 449, Alberta Court of Appeal, J.D.B. McDonald, B.L. Veldhuis and M.G. Crighton JJ.A., April 13, 2018. Digest No. TLD-May142018008