The Queen v. Spelrem, 2001 FCT 1064

Date: 20010927

Docket: T-1334-00

Neutral Citation: 2001 FCT 1064

Ottawa, Ontario, this 27^th day of September 2001

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

HER MAJESTY THE QUEEN

Plaintiff

- and -

GARY SPELREM

Defendant

REASONS FOR ORDER AND ORDER

PELLETIER J.

[1]                 The Statement of Claim in this matter was issued on July 24, 2000. In the absence of a Statement of Defence, the matter went into Status Review after six months. On March 5, 2001, a Notice of Status Review was issued directing the defendant to show cause, before April 6, 2001, why default judgment should not be entered. That Notice of Status Review was returned to the Court by Canada Post as unclaimed. On June 1, 2001, another notice was issued, this one requesting the plaintiff to show cause why the claim should not be dismissed for delay. The plaintiff's response was to file a Motion Record for judgment in default.

[2]                 The purpose of status review is not to dismiss valid claims without a hearing, notwithstanding the "show cause" language of the notice. To that extent, plaintiffs have a legitimate expectation that they will not lose a valid cause of action for failing to meet a filing deadline. On the other hand, a demand to show cause why a claim should not be dismissed is not a diary entry reminding plaintiffs to file for judgment in default. By the time a Notice of Status Review issues, a plaintiff has had six months to ask for default judgment. If it is necessary to issue a Notice of Status Review, some explanation is called for beyond simply doing what could have been done sooner. The Court is under no obligation to deal with a bare motion for default judgment filed in response to a Notice of Status Review.

[3]                 That said, the Court has before it a Motion for judgment in default of defence. The Court is spared the trouble of deciding what to do about the absence of explanation for the delay by the fact that proof of service of the Statement of Claim is inadequate.

[4]                 The Court entertains no doubt that the various objections taken to proof of service on these files is a source of exasperation to those whose job it is to administer this litigation. Service of documents is regarded in many law firms as a mechanical exercise, delegated to non-legal staff who may or may not receive any guidance beyond a photocopy of the applicable page of the Rules of Court. To the extent that anyone worries about it, comfort is taken in the notion that even if proof of service is technically deficient, there is always the option of applying to validate service on the ground that it came to the defendant's attention. If one is put to that trouble by some nit-picking judge. One can imagine that there are some who despair at what appears to be mindless formality in aid of those who have not paid their debts.

[5]                 The difficulty is that service is not simply a question of whether the defendant somehow could be expected to have received word of the claim. Service goes to jurisdiction. It is the foundation of the jurisdiction of the Court to make an order against the person of the defendant:

"Common law rules of jurisdiction are procedural in character. The rules as to legal service define the limits of a court's jurisdiction. In all the common law provinces and territories, personal service of the originating process after it has been issued is the foundation of jurisdiction in actions in personam. In other words, personal jurisdiction over a defendant is based upon the requirement and sufficiency of personal service within the province or territory of the forum."

J.G. Castel Canadian Conflict of Law (4^th Ed.) Butterworths, Toronto, 1997 at p. 202

[6]                 Attention is drawn to the fact that, according to the learned author, jurisdiction over a defendant is based on the requirement and sufficiency of service. Both the requirement and sufficiency of service, but the latter in particular, are to be determined by reference to the rules dealing with service of documents. So compliance with the rules of personal service is not an inconvenient formality. It is the foundation of the right to a judgment against the defendant.

[7]                 In this case, an attempt was made to effect personal service as provided in Rule 128(1)(b) of the Federal Court Rules, 1998:

[8]                 The Affidavit of Service in this matter provides as follows:

I, Raymond Reese, of the City of Melville in the Province of Saskatchewan swear/affirm that:

1.              On the 12^th day of September 2000, I served Gary Spelrem with a certified copy of the Statement of Claim by delivering to and leaving the certified copy of the Statement of Claim with the Defendant or by:

serving the Defendants wife, Mrs. Gary Spelrem at the District of Ponoka, Alberta and by mailing a copy to 4301 39^th Ave, Ponoka, Alberta.

2.              I was able to identify the person by means of verbal identification.

3.              A copy of the front page of the Certified Statement of Claim is attached and marked Exhibits "A"

4.              That to effect service I necessarily travelled 284 kms.

[9]                 In the interests of avoiding the appearance of nit-picking, one could assume that Mr. and Mrs. Spelrem reside together, until one notes that the wife was served "at the District of Ponoka" but the copy of the Statement of Claim was mailed to a street address in the town of Ponoka, Alberta. Rule 128 is clear that the Statement of Claim must be mailed to the address at which a copy of it was left with the adult person. In the face of this discrepancy, there is no basis for assuming that Mr. and Mrs. Spelrem reside together and therefore no basis for assuming that the Statement of Claim was left with an adult person at the defendant's place of residence. One might speculate that, in addition to the farm residence, the Spelrems maintain a residence in a nearby town where they pick up their mail. And if that is so, the Statement of Claim likely came to Mr. Spelrem's attention. But it is not for the Court to speculate about this in the absence of evidence. On the face of it, the Rules have not been complied with and the consequence is that there is no proof of valid service.

[10]            If the difficulty is simply inattention in describing the same location in two ways, the problem could have been avoided by complying with the Rules and filing an Affidavit of Service in Form 146A which provides the following template for service pursuant to Rule 128(1)(b):

(for personal service by leaving a copy with an adult person in the same household)

1.              I served (identify person served) with (identify the document served) leaving a copy on (date), at (time) with a person (insert name if known) who appeared to be an adult member of the same household in which (identify person served) is residing at (address where service was made), and by sending a copy by regular mail (or registered mail) on (date) to (identify person served) at the same address.

2.              I ascertained that the person was an adult member of the household by means of (State how it was ascertained that the person was an adult member of the household).

[11]            In addition to identifying the means of knowledge that the person served was a member of the household of the defendant, the means of knowledge that the premises in question are in fact the household of the defendant should be specified. Had that occurred in this case, much trouble could have been avoided.

[12]            In the absence of proof of valid service, the motion for default judgment is dismissed.

[13]            Even if judgment had been granted, the cost of service would have been the object of some inquiry. Ponoka is located between Edmonton and Calgary, approximately one hour's drive from Edmonton. It is not obvious why, in those circumstances, a process server should be dispatched from Melville, Saskatchewan, in South East Saskatchewan, to serve a Statement of Claim upon the defendant. The plaintiff's choice of process servers is a matter entirely within the plaintiff's discretion but the defendant will only be ordered to pay reasonable service costs.

ORDER

The motion for judgment in default is dismissed on the ground that proof of service does not comply with the requirements of the Rules.

                                           "J.D. Denis Pelletier"           

Judge