By Jennifer Biernaskie, Partner, and Andrea MacLean, Summer Student
A recent Alberta Court of Appeal decision reiterated the importance of timely service of a statement of claim.
In McGowan v Lang (“McGowan“) the Court found that a plaintiff must formally serve a statement of claim upon the defendant(s) – even in instances where the defendant’s insurer had been provided with a copy of the statement of claim. Failure to do so may be fatal to the action.
The Alberta Rules of Court require that a statement of claim be served on a defendant within one year of its being filed, unless the Court grants an extension.
In McGowan, the plaintiff missed the one-year deadline for service. The statement of claim – relating to a motor vehicle accident – was filed and a copy forwarded to the insurance adjuster who was handling the claim. However, it was not formally served on the defendant until several months after the service deadline.
At no point did the insurance adjuster indicate to the plaintiff that:
- service was accepted on behalf of the defendant;
- liability was not contested; or
- the time limit was waived.
Thus, there could be no extension of service granted under Rule 3.27(1)(a).
However, prior to the service deadline, there had been ongoing negotiations between the adjuster and the plaintiff’s counsel. The adjuster had notified the plaintiff’s counsel that he would file a statement of defence if he did not receive medical documents. The plaintiff argued that this conduct created “special or extraordinary circumstances” which should give rise to an extension of the time for service under Rule 3.27(1)(c).
The Court of Appeal found that the actions of the adjuster did not create special or extraordinary circumstances. Further, plaintiff counsel’s reliance on the adjuster’s statement was found not to be the reason for the failure of service; it was simply a matter that the plaintiff’s lawyer had neglected.
The Court found that an extension of time for service of a statement of claim under Rule 3.27 should not occur where the failure to serve is caused by the plaintiff lawyer’s inadvertence, even in situations where there is no demonstrated prejudice to the defendants.
The takeaway is that according to the Court, a lawyer acting for a plaintiff should file the statement of claim in a timely fashion and thereafter serve it upon the defendant(s) pursuant to the timelines in the Rules of Court, regardless of any ongoing negotiations with a defendant’s insurer.
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