PRACTICE |
Service |
Canada v. Spelrem
T-1334-00
2001 FCT 1064, Pelletier J.
28/9/01
6 pp.
In absence of statement of defence, matter went into status review after six months--Notice of status review, directing defendant to show cause why default judgment should not be entered, returned as unclaimed--Another notice requested plaintiff to show cause why claim should not be dismissed for delay--Plaintiff responded by filing motion for judgment in default--If necessary to issue notice of status review, some explanation for delay required--Regardless of absence of such explanation, proof of service herein inadequate--Many law firms regarding service of documents as mechanical exercise, delegated to non-legal staff who may or may not receive any guidance beyond photocopy of applicable page of rules of court--Even if proof of service technically deficient, comfort taken from option of applying to validate service on ground came to defendant's attention--Some would despair at apparently mindless formality in aid of debtors--But service not simply question of whether defendant received word of claim--Service goes to jurisdiction--It is foundation of Court's jurisdiction to make order against defendant--J.-G. Castel writes in Canadian Conflict of Laws (4th ed.) Toronto: Butterworths 1997, at p. 202 that rules as to legal service define limits of court's jurisdiction; in all common law provinces, territories, personal service of originating process after issued is foundation of jurisdiction in actions in personam--According to Castel, personal jurisdiction over defendant based upon requirement, sufficiency of personal service--Both requirement, sufficiency of service determined by reference to rules--Compliance with rules of personal service not inconvenient formality, but foundation of right to judgment against defendant--Federal Court Rules, 1998, r. 128(1)(b) providing personal service on individual affected by leaving document with adult person residing at individual's place of residence, mailing copy of document to individual at that address--Affidavit of service stating service on defendant by delivering to, and leaving certified copy of statement of claim with wife--Cannot assume Mr. and Mrs. Spelrem residing together because wife served at District of Ponoka, Alberta, copy mailed to street addresss in Ponoka, Alberta--R. 128 clear that statement of claim must be mailed to address at which copy left with adult person--As no basis for assuming Mr. and Mrs. Spelrem reside together, no basis for assuming statement of claim left with adult person at defendant's place of residence--Court would not speculate that in addition to farm residence, Spelrems maintain residence in nearby town where pick up mail in which case statement of claim likely came to Mr. Spelrem's attention--As Rules not complied with, no proof of valid service--If difficulty simply inattention in describing same location in two ways, problem could have been avoided by complying with Rules, filing affidavit of service in Form 146A which provides template for service pursuant to r. 128(1)(b)--Should identify means of knowledge person served member of household, specify means of knowledge premises in fact household of defendant--In absence of proof of valid service, motion for default judgment dismissed--Federal Court Rules, 1998, SOR/98-106, r. 128(1)(b), Form 146A.