Hansraj v. Ao et al.,

• Judge: Fraser, C.J.A., McClung and Côté, JJ.A.
• Neutral Citation: 2004 ABCA 223
• Citation: 2004 ABCA 223,(2004), 354 A.R. 91 (CA),[2005] 4 WWR 669,34 Alta LR (4th) 199,354 AR 91,[2004] CarswellAlta 849,[2004] AJ No 734 (QL),329 WAC 91,354 A.R. 91,[2004] A.J. No 734 (QL),(2004), 354 AR 91 (CA),329 W.A.C. 91
• Date: 28 June 2004
• Court: Court of Appeal (Alberta)

Hansraj v. Ao (2004), 354 A.R. 91 (CA);

    329 W.A.C. 91

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JL.050

Anthony Hansraj and Roger Hansraj (plaintiffs/appellants) v. Zefeng Ao (defendant/respondent) and Richard Medeirus and John Doe I and John Doe II (defendants/not parties to appeal)

(No. 0203-0368-AC; 2004 ABCA 223)

Indexed As: Hansraj v. Ao et al.

Alberta Court of Appeal

Fraser, C.J.A., McClung and Côté, JJ.A.

June 28, 2004.

Summary:

The plaintiffs sued the defendant Ao in Alberta as a result of a motor vehicle accident. The defendant claimed to be insured with Saskatchewan Government Insurance (SGI). The plaintiffs were unable to serve the statement of claim on the defendant. They obtained an ex parte order for substitutional service ex juris. The order permitted service by placing an advertisement in a newspaper in Markham, Ontario. There was no indication that the statement of claim or the notice in the Markham newspaper ever came to the defendant's attention. The statement of claim expired. The defendant moved to set aside the statement of claim. The plaintiffs cross-moved for permission to correct any irregularities in their materials.

A Master of the Alberta Court of Queen's Bench, in a decision unreported in this series, dismissed the defendant's motion and allowed the cross-motion. The defendant appealed. SGI applied to remove an affidavit filed by the plaintiff on the grounds that most of the correspondence attached to the affidavit, consisting of letters between SGI and the plaintiffs' counsel, was marked "without prejudice" and was privileged.

The Alberta Court of Queen's Bench, in a decision reported 314 A.R. 262, allowed the appeal. The court ruled that the statement of claim expired without service and should now be set aside as against the defendant. The court also ruled that the correspondence objected to was not privileged. The plaintiffs appealed. A cross-appeal was filed respecting the privilege issue.

The Alberta Court of Appeal allowed the appeal in part, ruling that it would not be fair to render a judgment now declaring either that the action was irretrievably dead against the defendant, or declaring that the defendant was timely served or could not contest service. The court allowed the plaintiffs or the defendant to bring any further motion in the Court of Queen's Bench that they wished, subject to certain rulings the court made on matters at issue. The court made suggestions for law reform. The court upheld the ruling respecting privilege.

Practice - Topic 1471

Pleadings - Statement of claim - General - Expiry and renewal - Rule 11(9) of the Alberta Rules of Court provided that a statement of claim could be renewed (and hence served) after it had expired where "another person purporting to negotiate on behalf of a defendant caused the ... plaintiff's lawyer to reasonably believe, and to rely on that belief, that ... liability would not be contested" - The Alberta Court of Appeal, in proceedings brought as a result of a motor vehicle accident, ruled that the above provision applied here where the plaintiffs' lawyer wrote to the defendant's supposed insurer that "there was no doubt that liability for this accident rested exclusively with the defendant", requested that "If you disagree with that position please advise" and the insurance adjuster never disagreed - See paragraphs 47 to 57, 102.

Practice - Topic 1471

Pleadings - Statement of claim - General - Expiry and renewal - The Alberta Court of Appeal ruled that the court had no general equitable or discretionary power to bypass rule 11 of the Alberta Rules of Court respecting renewal of the statement of claim - The court added that the equitable power to relieve against forfeitures had no application to the present lawsuit brought as a result of a motor vehicle accident - See paragraphs 62 to 66.

Practice - Topic 2210

Pleadings - Striking out pleadings - Time for objection or application - The plaintiffs sued the defendant in Alberta as a result of a motor vehicle accident - In May 1999, the plaintiffs sent a "courtesy copy" of the statement of claim to the insurance adjuster - The plaintiffs were unable to serve the statement of claim on the defendant - They obtained an ex parte order for substitutional service ex juris - The order permitted service by placing an advertisement in a newspaper in Markham, Ontario - There was no indication that the statement of claim or the notice in the Markham newspaper ever came to the defendant's attention - The statement of claim expired - In September 2001, the defendant moved to set aside the statement of claim - The Alberta Court of Appeal stated: "The courtesy copy of the statement of claim was sent to the adjuster in early May 1999, but the notice of motion to 'set aside the statement of claim' was not filed until mid-September 2001. In all the circumstances, that seems to me too late, and a violation of [Rule] 559" - See paragraphs 12 to 22.

Practice - Topic 2525

Service - Substituted service - When available - [See Practice - Topic 2565 ].

Practice - Topic 2565

Service - Service of notice, writ or statement of claim out of jurisdiction - Statement of grounds required to support application - The plaintiffs sued the defendant in Alberta as a result of a motor vehicle accident - The plaintiffs were unable to serve the statement of claim on the defendant - They obtained an ex parte order for substitutional service ex juris - The order permitted service by placing an advertisement in a newspaper in Markham, Ontario - The affidavit in support of the order was made by a process server who knew nothing about the accident or injuries in question - The affiant "merely" swore at attempts to serve the defendant and to information that the defendant was now in Markham, Ontario - The affidavit did not say that "the action was founded on a tort committed in Alberta", as required by rules 31(b) and 30(h) of the Rules of Court, and that the proposed alternative mode of service was likely to be effective, as required by rule 23(2) - The Alberta Court of Appeal ruled that the defendant was entitled to attack the order for substitutional service ex juris where it lacked the evidentiary foundation required by law - The court also allowed the plaintiff to move afresh for leave to serve ex juris with new evidence - See paragraphs 67 to 101.

Practice - Topic 2566.1

Service - Service of notice, writ or statement of claim out of jurisdiction - Setting aside service or order for service ex juris - Evidence - The Alberta Court of Appeal held: "So a defendant moving to set aside purported service is expected to swear that neither any copy of the statement of claim, nor knowledge of its contents, was known to him. For instance, he might swear that he never saw the advertisement in the newspaper, never heard of it, and was thousands of miles away at a mining camp in Bolivia at all material times. In practice, such contents are usual in a defendant's affidavit" - The court added that here, the defendant "should have presented some evidence about service or notice, and should not get an order which in effect upsets the order for service, or upsets the service, without such evidence" - See paragraphs 23 to 37.

Practice - Topic 2643

Service - Generally - Valid service - What constitutes - The plaintiffs sued the defendant in Alberta as a result of a motor vehicle accident - In May 1999, the plaintiffs sent the insurance adjuster a letter that said: "Further to the above matter, please find enclosed courtesy copy of the Statement of Claim which has now gone out for service. Please be advised that we do not require a Statement of Defence at this time and we will provide you with ample prior written notice before taking any further steps in this action" - The Alberta Court of Appeal ruled that "viewed as a whole, this letter and enclosure plainly did not constitute service on anyone" - See paragraphs 103 to 107.

Practice - Topic 2658

Service - Generally - Curing defective service - [See Practice - Topic 2565 ].

Practice - Topic 4580

Discovery - What documents must be produced - Privileged documents - Documents prepared for purpose of settlement - SGI, the alleged insurer of the defendant Ao, applied to remove an affidavit filed by the plaintiff on the grounds that most of the correspondence attached to the affidavit, consisting of letters between SGI and the plaintiffs' counsel, was marked "without prejudice" and was privileged - The motions judge, after discussing the law relating to privilege respecting communications in furtherance of settlement, ruled that the correspondence objected to was not privileged - None of it contained an offer of settlement, or any agreement to admit liability conditional on any resolution of the dispute - A fax asking "can we soon negotiate a settlement?" might well have been privileged as an "opening shot" if any negotiations had resulted - On the present record, there was nothing relevant in it even if it was admissible - The Alberta Court of Appeal upheld the decision - See paragraphs 8 to 11.

Practice - Topic 8330

Costs - Appeals - Costs of appeal - Divided success - The Alberta Court of Appeal ruled: "Success on this appeal has been highly divided, and many of the issues first arose on appeal. But the appeal books benefitted both sides. Therefore, I would order the respondent to pay the appellants half the disbursement for preparing and serving the appeal books. I would give no other costs to anyone of this appeal. That would render moot the question of whether factums were filed on time or not" - See paragraph 127.

Cases Noticed:

Shah v. Christiansen and Hi-Road Construction Ltd. (1992), 135 A.R. 74; 33 W.A.C. 74 (C.A.), consd. [para. 19].

Grice v. R., [1957] O.W.N. 527; 11 D.L.R.(2d) 699; 119 C.C.C. 18; 26 C.R. 318 (H.C.), refd to. [para. 27].

Raspier v. Robertson (1977), 4 C.P.C. 103 (Sask. Q.B.), refd to. [para. 27].

Raspa, Re (1972), 9 N.S.R.(2d) 580; 33 D.L.R.(3d) 605; 10 C.C.C.(2d) 342; 19 R.F.L. 90 (T.D.), refd to. [para. 27].

Tasse v. Hoveland et al. (1992), 132 A.R. 117 (Q.B. Master), refd to. [para. 27].

Paupst v. Henry, [1984] I.L.R. 1-1718; 43 O.R.(2d) 748; 2 D.L.R.(4th) 682; 38 C.P.C. 5 (H.C.), refd to. [para. 27].

Vidito v. Veinot (1912), 10 E.L.R. 292; 3 D.L.R. 179 (N.S.T.D.), refd to. [para. 31].

Hoehn v. Marshall (1917), 12 O.W.N. 193 (H.C.), refd to. [para. 31].

Morozuk v. Fedorek, [1941] 1 W.W.R. 382 (Alta. C.A.), refd to. [para. 31].

Canadian-Dominion Leasing Corp. v. Corpex, [1963] 2 O.R. 497 (S.C. Master), refd to. [para. 31].

Pettigrew v. Robb, [1983] A.U.D. 1296 (Q.B. Master), refd to. [para. 31].

Canada (Attorney General) v. Doucette (1992), 133 A.R. 68; 11 C.P.C.(3d) 81 (Q.B.), refd to. [para. 31].

Thorstad v. Robson (1998), 166 Sask.R. 83; 33 C.P.C.(4th) 135 (Q.B.), refd to. [para. 31].

Kistler v. Tettmar, [1905] 1 K.B. 39; 74 L.J.K.B. 1 (Engl. C.A.), refd to. [para. 32].

Fontaine v. Serben, [1974] 5 W.W.R. 428 (Alta. Dist. Ct.), refd to. [para. 32].

Eyre v. Eyre, [1971] 2 O.R. 744 (S.C. Master), refd to. [para. 32].

Administration of Motor Vehicle Accident Claims Act v. Roemer and Dejong (1986), 71 A.R. 24; 45 Alta. L.R.(2d) 172; 19 C.C.L.I. 246 (C.A.), refd to. [para. 32].

Golden Ocean Assurance v. Martin (The Goldean Mariner), [1990] 2 Lloyd's Rep. 215 (C.A.), refd to. [para. 32].

Clarke v. Treadwell, [1987] A.U.D. 857 (C.A.), refd to. [para. 32].

Sissons v. Whiteside, [2004] A.R. Uned. 39 (C.A.), refd to. [para. 32].

Hohnstein v. Gunther et al. (2001), 293 A.R. 399; 257 W.A.C. 399; 2001 ABCA 297, refd to. [para. 53].

Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50; 125 N.R. 294; 47 O.A.C. 333, refd to. [para. 61].

Martinez v. Hogeweide et al. (1998), 209 A.R. 388; 160 W.A.C. 388; 1998 ABCA 34, refd to. [para. 63].

La Grange v. McAndrew (1879), 14 Q.B.D. 210 (D.C.), refd to. [para. 64].

Newbiggin-by-the-Sea Gas Co. v. Armstrong (1879), 13 Ch. D. 310 (Engl. C.A.), refd to. [para. 64].

Friendly v. Carter (1881), 9 O.P.R. 41, refd to. [para. 64].

Barry v. Sullivan (1909), 18 Man.R. 614; 10 W.L.R. 640, refd to. [para. 64].

Thomas v. Palin (1882), 21 Ch. D. 360 (Engl. C.A.), refd to. [para. 64].

Hudson Bay Co. v. Green (1881), 1 B.C.R.(Pt. 1) 247 (C.A.), refd to. [para. 64].

MacNeil v. Hodgin (1998), 215 A.R. 133; 1998 ABQB 145, not folld. [para. 66].

Fehr v. Immaculata Hospital et al. (1999), 253 A.R. 188; 1999 ABQB 865, refd to. [para. 66].

Glover v. Glover (No. 1) - see Glover v. Minister of National Revenue.

Glover v. Minister of National Reveune (1980), 29 O.R.(2d) 392 (C.A.), affd. [1981] 2 S.C.R. 561; 43 N.R. 271, refd to. [para. 66].

Saskatoon Mortgage & Loan Co. v. Roton, [1942] 2 W.W.R. 219 (Sask. C.A.), refd to. [para. 78].

Churchill (V.L.) & Co. v. Lonberg, [1941] 3 All E.R. 137 (C.A.), refd to. [para. 78].

Judgment Debtor (#1539 of 1936), Re, [1937] Ch. 137, refd to. [para. 78].

Porter v. Freudenberg, [1915] 1 K.B. 857 (Engl. C.A.), refd to. [para. 78].

Brisette v. City-Wide Taxi, [1952] O.W.N. 501 (S.C. Master), refd to. [para. 78].

Laframboise v. Woodward, [2002] O.T.C. 290; 59 O.R.(3d) 338 (Sup. Ct.), refd to. [para. 78].

Paragon Group v. Burnell, [1991] Ch. 498 (C.A.), leave denied [1991] 1 W.L.R. 279 (H.L.), refd to. [para. 79].

McGillis v. Hirtle (1992), 128 A.R. 83 (Q.B. Master), refd to. [para. 80].

Vaters v. Calgary Cab Co. et al. (2001), 286 A.R. 107; 253 W.A.C. 107; 92 Alta. L.R.(3d) 225 (C.A.), refd to. [para. 86].

Talbot v. Pan Ocean Oil Corp. and Pan Ocean Oil Ltd. (1977), 5 A.R. 361 (C.A.), refd to. [para. 93].

Kraupner v. Ruby (1957), 21 W.W.R.(N.S.) 145 (B.C.C.A.), refd to. [para. 96].

Iwai & Co. v. Ship Panaghia, [1962] Ex. C.R. 134 (Can.), refd to. [para. 96].

Leal v. Dunlop Bio-Processes International, [1984] 1 W.L.R. 874 (Engl. C.A.), refd to. [para. 97].

Parker v. Schuller (1901), 17 T.L.R. 299 (C.A.), refd to. [para. 97].

Strazisar v. Canadian Universal Insurance Co. (1981), 21 C.P.C. 51 (Ont. Co. Ct.), refd to. [para. 100].

Baly et al. v. Barrett et al., [1988] N.I. 412; 103 N.R. 379 (H.L.), refd to. [para. 100].

Statutes Noticed:

Rules of Court (Alta.), rule 11(9) [para. 49]; rule 23(2) [para. 74]; rule 31 [para. 70]; rule 559 [para. 13].

Authors and Works Noticed:

Snell's Equity (30th Ed. 2000), p. 599 [para. 65].

Counsel:

S.L. Miller, Q.C., for the appellants;

M.D. Kondrat, for the respondent.

This appeal was heard on April 14, 2004, by Fraser, C.J.A., McClung and Côté, JJ.A., of the Alberta Court of Appeal.

Côté, J.A., delivered reasons for judgment reserved for the Court of Appeal on June 28, 2004, at Edmonton, Alberta.