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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Alberta is going through a difficult economic period. These times can be challenging and while owners struggle to get their business through the rough patch, they want to preserve the assets and capital they have built up.
Legal issues surrounding contaminated sites affects landowners, developers, realtors, as well as consultants and contractors working on the front lines. This webinar will provide a practical review of how the legislation is actually being used, recent court decisions, challenges with brownfield developments, and future changes.
Who Should Attend: This webinar will be of interest to developers, contractors, environmental and real estate consultants, realtors, owners or lessors of land which may be impacted, and municipalities.
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).