Faxing on a Saturday: Justice Jones dismisses file under Rule 4.33 (long delay) and suggest service of affidavit of records is a meaningful litigation step

In a recent decision Droog v. Hamilton 2024 ABKB 243 the Justice Jones affirmed a decision dismissing the plaintiff's action for long delay under Rule 4.33. The basis for his decision was that the plaintiff's affidavit of records was not served until the Tuesday following a long weekend. The Tuesday was beyond the three-year period that had expired the previous Saturday and therefore could not be extended.

 Justice Jones determined that while section 22(2) of the Interpretation Act, which states that if the deadline for filing an instrument or performing an action falls on a day when the office is closed for business, the deadline may be extended to the following business day, it could not be used to extend the deadline. He reached this decision since service on opposing counsel on the Saturday deadline could have been accomplished via fax. 

Justice Jones stated that the manner in which section 22(2) is applied may be affected by the nature of the document being served. 

In the present scenario, service at a specific location was not mandatory for the affidavit of records to be received; for instance, a courthouse's presence was not a prerequisite for the document to be received. Consequently, on a Saturday, service could be accomplished via email or facsimile, and the court lacked the authority to extend the three-year statute of limitations:

 At paragraph 23 the court noted:

“I accept that the Appellants could not have effected service on the Presumptive Expiry Date by physically leaving the AoR at Respondents’ counsel’s office because the office was not open to accept it. However, the Respondents assert in their brief that service could have been effected by fax on that date. I agree. On a strict reading of s 22(2) of the Interpretation Act, I am not satisfied it is correct to say that counsel’s offices were not “open” on the Presumptive Expiry Date. The concept of “regular business hours” has no meaning in respect of fax service. Because the Respondents had provided counsel’s fax number as part of their address for service, I find that it was not necessary for counsel’s office to be open for fax service to be effected. Similarly, if the parties had agreed to email service, I find that this too could have been effected on the Presumptive Expiry Date notwithstanding that counsel’s office was not physically open."

While further discussion of the issues raised by the parties was not required, Justice Jones ultimately determined that the affidavit of records, had it been served in a timely manner, would have been adequate to prevent an application under Rule 4.33.

Of interest, this conclusion was reached despite the fact that the respondents already possessed eleven of the twelve documents contained in the affidavit and the remaining document appeared to be irrelevant. At this juncture, the limited records provided sufficient information to illustrate the Appellants' case in sufficient detail; the trial judge was tasked with determining whether or not they were sufficient to support the Appellants' claim.

This case highlights that faxing technology is not dead technology and is an example of the interesting and highly factual application of the there year, drop dead date rule under 4.33.

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