In Franssen v. Thule Towing Systems LLC, 2012 ABQB 657 a Master struck out a provision in an order obtained by the Plaintiffs extending the time to serve the Statement of Claim. The basis for the decision was that the Plaintiffs had not presented sufficient evidence in support of their ex parte application to obtain a three month extension of the time to serve the Statement of Claim pursuant to rule 3.26 of the Rules of Court.

The action arises out of a fire, which the Plaintiffs claim originated from a faulty or improperly installed converter module in their 2008 Hyundai Veracruz vehicle. The fire occurred on February 27, 2009. The Statement of Claim was filed on December 22, 2010. On December 6, 2011 the Plaintiffs obtained an order extending the time for service of the Statement of Claim until March 6, 2012. A Statement of Claim must be served on a Defendant within one year of filing unless the Court grants an extension of time for service. Rule 3.26 allows a Plaintiff to apply for an extension of up to three months. The extension application must be filed before the ordinary one year service period expires. The rule does not expressly state that evidence in support of the application is required, nor set out any legal test for the granting of the application. 

In support of the extension application the Plaintiffs filed an Affidavit sworn by an articling student working at the law firm representing the Plaintiffs. On October 25, 2012 one of the Defendants, Hyundai Motor Group, applied for an order striking out parts of the Affidavit and a declaration that the Plaintiffs could take no further steps against them on the grounds that the extension order should be struck out because it was obtained on insufficient evidence.

The Master struck out significant portions of the articling student’s Affidavit on the basis that it merely repeated allegations contained in the Statement of Claim, it did not disclose the source of the student’s belief in various hearsay statements, and it contained legal opinion or conclusion, rather than purely statements of fact. The Master, relying on Oberg v. Foothills Provincial General Hospital, (1999) 232 A.R. 263 (C.A.), held that evidence “from which it can be inferred that the application for renewal is not simply a delay tactic” is required in support of an extension application. Finally, the Master decided that the remaining portions of the articling student’s Affidavit did not contain any material facts capable of supporting an order extending the time to serve the Statement of Claim. Accordingly, the order extending the time to serve the Statement of Claim was struck out and a declaration was made that the Plaintiffs cannot take any further steps against the Hyundai Defendants.

This decision is currently being appealed, however it underscores the importance of ensuring that sufficient admissible evidence is presented whenever an order is sought. It should also serve as a reminder that serious consequences can flow from not taking care when obtaining a seemingly trivial procedural order.