PRACTICE |
Variation of Time |
Arrow Corporation Inc. v. Sea Tiger (The)
T-1916-03
2004 FC 1502, Hargrave P.
26/10/04
8 pp.
Motion for extension of time to serve statement of claim--Plaintiffs suing defendants for damage to flour milling machine shipped to Chile--Statement of claim served on defendant LCL eight days stale dated--Test for extension of time involving looking at, balancing circumstances, considering whether continuing intent to pursue claim, arguable case, prejudice to defendant if extension granted-- Court must also consider whether extension essential to ensure justice done between parties--Explanation for delay in bringing motion weak --Although motion is for extension of time for service, not for validating service, exploration of circumstances of service relevant re: doing justice between parties--Federal Court Rules, 1998, r. 147, validating service, broad--Test whether or not material to be served came to notice of person to be served--Here, statement of claim came to notice of LCL, who acknowledged receipt, commented on claim--Ignoring fact LCL acknowledged receipt of statement of claim day after issued, took exception both to initial short delay in service, delay in seeking extension, would be clear injustice--Motion granted--Federal Court Rules, 1998, SOR/98-106, r. 147.