By Mustafa Ghori
In Tetrad Auto Service Ltd. v Universal Tire & Services Ltd. 2023 SKKB 104, the Court took the opportunity to revisit and clarify the rules surrounding service. Proper service of Court documents ensures that parties to an action have timely notice of all proceedings that may affect their rights.
Facts
On March 2, 2022, Tetrad Auto Service Ltd. (Tetrad) filed a Statement of Claim against Universal Tire & Services Ltd. and Mitchel Neufeld (Mr. Neufeld).
On April 25, 2022, Mr. Neufeld filed a Statement of Defence and counterclaim. The address for service shown at the end of the Statement of Defence was the lawyer’s office.
At the close of pleadings, Mr. Neufeld’s counsel filed a Notice of Withdrawal of Lawyer of Record stating the last known physical address of Mitchel Neufeld, a director of Universal Tire & Services Ltd. This notice did not include an email address for Mr. Neufeld.
On May 6, 2022, Tetrad filed a reply to the Defence with the Court. As proof of service, Tetrad filed an Affidavit of Email Service on Mr. Neufeld by email to Neufeldmw@gmail.com. The parties filed a certification of compliance with the mediation requirements on December 5, 2022.
On March 2023, Tetrad filed a Notice of Application to compel Mr. Neufeld’s attendance for questioning because they alleged Mr. Neufeld had thus far neglected or refused to schedule questioning. Again, as proof of service of the Notice of Application, Tetrad filed an Affidavit of Email Service showing that Mr. Neufeld was served by email to neufeldmw@gmail.com. In the supporting affidavit, counsel for the Tetrad stated that Mr. Neufeld confirmed their residence in Kiscoty by email dated January 12, 2023, and that he did not provide a physical address. However, Tetrad’s counsel did not attach the email as an exhibit to the affidavit.
On the return date of the Tetrad’s Notice of Application, no one appeared in Court on behalf of the Mr. Neufeld. The Court was tasked with gauging whether there was proper service of the Notice of Application and, if not, whether it should apply Rule 12-1 of The Queen’s Bench Rules [QB Rules] to validate the service.
Proper Service
The Court found that service by email was improper and stated that QB Rule 12-4(2) only allows service by email where the party being served has filed the email as their address for service, which was not the case here.
QB Rule 12-4(2) states that:
… if an address for service in a proceeding has been filed respecting the person to be served, a document required to be served may be served at the address for service by any of the following modes:
(a) courier, including any adult person who delivers the document;
(b) registered or ordinary mail;
(c) fax; or
(d) electronic transmission.
The Court stated that the proper mode of service on Mr. Neufeld would be personal service. Rule 12-2 states:
12-2. Personal service
12-2(1) Service of a document must be effected by personal service of that document on the person to be served except where:
(a) an enactment or order of the Court provides otherwise; or
(b) these rules authorize service by an alternative or special mode of service.
The Court added that if Tetrad wanted to use another mode of service, then it could have applied for an order of substitutional service under Rule 12-10. The Court mentioned in para 23 that:
“the test for substitutional service is cogent evidence of:
- Reasonable steps taken to locate and serve the party through an authorized mode of service (usually personal service);
- The circumstances that make it impractical to effect service by that mode; and
- A proposed, alternative mode of service that, in the opinion of the applicant, is likely to provide the person to be served with notice of the document.”
The Court also noted that if an enactment specifies the authorized service method and does not allow substitutional service, then that is the only possible mode of service. In that case, an order for substitutional service is unavailable since the Rules are subordinate to any statute.
Validate Irregular Service under Rule 12-1
The Court contemplated whether this was an appropriate case to validate the service of the Notice of Application. Under Rule 12-1(1), the court has the authority to validate service where the notice was achieved, although the service was improper, or to set aside service where there was no actual notice.
The primary consideration for the court in exercising its discretion to validate service is whether the person to be served either received actual notice or would have received notice but for their attempts to evade service. The Court noted that neither criteria were established in this case and declined to grant the application to validate the email service.
The Court also pointed out that no confirmation of receipt, as was the case here, poses another challenge since the date of service is unspecified. That uncertainty would put into question the 14-day requirement under Rule 6-9 for service of notices of application.
Key Takeaways:
- The default mode of service is personal service unless an enactment or an order of the Court provides otherwise or the Rules authorize service by an alternative or special mode of service;
- Email service is only authorized where the party being served has filed an email as their address for service;
- A party to an action can apply for substitutional service but would have to show that personal service had been attempted, was shown to be impractical and propose an alternative mode of service which is likely to provide the person to be served with notice of the document; and
- The Court can validate irregular service. The primary consideration for the Court in exercising its discretion is whether the person to be served either received actual notice or would have received notice but for their attempts to evade service.
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