On November 28, 2013, Master S.L. Schulz of the Alberta Court of
Queen's Bench dismissed a Defendant's application to
declare a Statement of Claim "expired" because it was
served more than one year after it was filed, contrary to Rule
The action related to a motor vehicle accident which occurred on
February 5, 2010. Shortly after the accident, the injured Plaintiff
began negotiating a settlement with the Defendant's insurance
adjuster. When no settlement was reached, the Plaintiff retained
counsel and a Statement of Claim was filed within the appropriate
After the claim was filed, Plaintiff counsel and the adjuster
continued with negotiations. Liability was never raised by the
adjuster, and none of the offers made by the adjuster included any
discount for contributory negligence or other liability risks. At
one point, because the Plaintiff had not provided medical documents
requested by the adjuster, the adjuster threatened that the records
must be provided or he would be filing a Statement of Defence.
As no settlement was reached, the Plaintiff's claim was
served on the Defendant. Service occurred two and a half months
after the one year deadline and the Defendant accordingly applied
for a declaration that the Statement of Claim was expired. The
Plaintiff cross-applied for a retroactive extension of the time for
service pursuant to 3.27, which allows an extension of up to three
There were three grounds considered in determining whether the
extension should be allowed. The first was whether the adjuster had
caused Plaintiff counsel to believe that liability would not be
contested. Master Schulz confirmed earlier case law which states
that entering into negotiations and/or requesting medical
information does not provide a reasonable basis upon which to
conclude liability will not be an issue.
The second ground considered was whether the adjuster had caused
the Plaintiff to rely upon the belief that the time limit for
service would be waived. Master Schulz found the issue of service
had not been discussed and, in fact, Plaintiff counsel had not
turned his mind to service at all. Accordingly, he could not have
relied upon something said by the adjuster in relation to the
issue. As noted by Master Schulz: "... waiver cannot be
foisted on someone. It must be a conscious act."
Lastly, it was considered whether any special or extraordinary
circumstances resulting from the conduct of the adjuster permit the
Court to extend the time for service. Emphasis was placed on the
adjuster's threat to file a Statement of Defence, which Master
Schulz felt would "create the impression that the adjuster was
satisfied with service as it stood". Although this
communication was held to fall short of a standstill agreement, it
was described as "sloppy" and formed the "special
circumstances" necessary for Master Schulz to allow an
extension for the time for service under Rule 3.27(10)(c).
Ultimately, it was concluded it would be "unfair in these
circumstances to end an otherwise valid claim because of a
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