nan 2004 SKQB 401 Q.B.G. A.D. 2004 No. 485 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: SASKATCHEWAN VALLEY POTATO CORPORATION RESPONDENT (PLAINTIFF and JAMES STANLEY MASSEY APPLICANT (DEFENDANT) Perry D. Erhardt for the respondent (plaintiff) Monte J. Sheppard for the applicant (defendant) FIAT MALONE J. October 7, 2004 [1] This is an application to set aside a noting for default and the resulting default judgment. The main ground of the application is that the service of the statement of claim on the defendant did not comply with Rule 19(1) of The Queen’s Bench Rules. In support of the application the defendant deposed as follows: 2. That on or about March 16, 2004 received registered letter containing the Statement of Claim in the within action. 3. It was my belief and understanding that the receipt by way of registered mail of the Statement of Claim did not constitute proper service on myself as required by the Queen’s Bench Rules. 4. As such did not take any steps to defend the action believing that proper personal service would be made on me in due course. [2] Queen’s Bench Rule 19(1) provides as follows: 19(1) Service of document shall be effected by personal service of that document on the person to be served except where: (a) statute, regulation or order of the court provides otherwise; or (b) these rules authorize service by an alternate or special mode of service. [3] In my opinion however, this Rule must be read in conjunction with Rule 18, the relevant provisions of which are as follows: 18(1) Subject to the express provisions of any statute or regulation and notwithstanding any rule respecting service, the court has discretion to validate or set aside the service of any document. (2) The primary consideration for the court in the exercise of its discretion is that the person served or to be served: (a) received notice of the document. (3) Where the court is satisfied that the person to be served received notice of the document, the court may: (a) validate any irregular or unauthorized service of document.... (5) The court may set aside the consequences of any default to respond to service of document, or may extend the time to respond to service of document, where the court is satisfied that: (a) the person to be served did not have notice of the document.... [4] Queen’s Bench Rule 18 is new rule and came into effect in December 2002. have been unable to find any authorities that have considered its provisions. Prior to its implementation the procedure to be followed to set aside noting for default and resulting default judgment was as set out by Zarzeczny J. in Schachtel v. Wasmann, 2004 SKQB 120 (CanLII); [2004] S.J. No. 214 (QL) (Q.B.) at para. [17] The circumstances under which court will exercise its discretion to set aside judgment regularly signed are settled. The application should be made as soon as possible after the judgment comes to the knowledge of the defendant, but mere delay will not bar the application, unless an irreparable injury will be done to the plaintiff or the delay has been wilful. The application should be supported by an affidavit setting out the circumstances under which the default arose and disclosing defence on the merits. It is not sufficient to merely state that the defendant has good defence upon the merits. The affidavits must show the nature of the defence and set forth facts which will enable the court or judge to decide whether or not there was matter which would afford defence to the action. Any delay in making the application must be explained. (See First City Capital Ltd. v. Abramson Enterprises Ltd. and Abramson (1988), 1988 CanLII 5106 (SK CA), 68 Sask. R. 281 (C.A.); Fidyk v. Saskatchewan Cycle Assoc. Inc. et al. (1991), 1991 CanLII 7723 (SK QB), 91 Sask. R. 262 (Q.B.); Sanderson v. North Canada Air Ltd., [1988] S.J. No. 80 (QL) (Sask. C.A.)). [5] In my opinion however, Rule 18 now requires the defendant to satisfy the court that he has not received “notice of the document,” being the statement of claim herein, before the circumstances referred to by Zarzeczny J. are considered. [6] The defendant has admitted receiving a copy of the statement of claim by registered mail and the fact that he was under the impression that it did not constitute valid service is, in my opinion, of no assistance to him. [7] Accordingly, I have no alternative but to dismiss the application and validate the earlier service upon the defendant be registered mail. [8] The plaintiff is entitled to the taxable costs of the application.
FIAT: This is an application to set aside a noting for default and the resulting default judgment. The main ground of the application is that the service of the statement of claim on the defendant did not comply with Rule 19(1) of The Queen's Bench Rules. HELD: The application is dismissed and the service upon the defendant by registered mail is validated. 1) Rule 19(1) of the Rules must be read in conjunction with Rule 18. 2) Queen's Bench Rule 18 is new rule and came into effect in December 2002. No authorities were available that considered its provisions. 3) Rule 18 requires the defendant to satisfy the court that he has not received notice of the document. 4) The defendant admits receiving a copy of the statement of claim by registered mail and the fact that it did not constitute valid service is of no assistance to him.