Case Bites for February 3, 2025

Edited by Amanda Kostek

Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.

401683 Alberta Ltd. v Co-Operators General Insurance Company, 2025 ABKB 28
Evidence of Usual Practice

Urban Square Holdings Ltd v Del Fisher Insurance Inc, 2025 ABKB 54
Validating Service of Claim after the period for service has expired

Ranger v Precision Geomatics Inc., 2025 ABKB 45
Inordinate Delay

Secan Association Inc. v Cannan, 2025 ABKB 38
Whether undertakings advance an action


401683 Alberta Ltd. v Co-Operators General Insurance Company, 2025 ABKB 28

The Plaintiff brought an action against its broker and insurer following a fire. The Broker appealed the dismissal of its summary dismissal application. At issue was the denial of coverage for the Plaintiff to have the vacant property in question inspected every 72 hours to maintain coverage. This requirement was communicated by the broker to the Insured, and the Insured engaged a company to carry out the inspections. There was no dispute that the Insured was advised of the inspection requirement, and the permit was provided to the Insured. Insurance reviews occurred between the time the vacancy permit was issued and the fire. Further, the Insured was provided with a copy of the policy. At issue was whether the Broker’s standard of care required it to specifically advise that if the inspections were not carried out, there would be no coverage: 

[9]               Neither the Appellant nor the Respondent’s corporate officers have any specific memory of this information being passed on. While correspondence between the Parties suggests that the Respondent was aware that the inspections had to be performed, there is no correspondence showing the exact consequences of non-compliance with the inspection requirement. 

[10]           The Respondent’s expert suggests it is an Insurance Broker’s professional duty not only to advise of the requirement for inspections, but also to specifically advise their client of the exact consequences of failing to strictly comply with those requirements. Put another way, failure to specifically advise their client of the full cancellation of coverage in the event the inspections were not performed would, in the expert’s view, constitute professional negligence.

The Insured knew the 72 hour inspections were mandatory. The Broker could not recall its specific conversations to the Insured, but it was the Broker’s standard practice to advise an Insured of the consequences of failing to perform the inspections. The Court accepted that while evidence of a regular practice is acceptable evidence, it is subject to the credibility of the witness:

[24]           Evidence of regular or usual practice is acceptable evidence. A trier of fact is entitled to draw an inference that a professional who testifies she invariably does something in their professional capacity did so at the time in question, notwithstanding a lack of specific memory of that occasion (Loffler v Cosman2010 ABQB 177 paras 157 – 162 (“Loffler”)).

[25]           However, such an inference is not an inexorable one. It is dependent upon the credibility of the party relying upon their usual practice as a substitute for actual memory (Loffler, at 163 – 164).

[26]           The strongest evidence supporting the assertion that the Appellant advised the Respondent is the notion that a professional would have followed her usual practice and done so.  However, that conclusion requires a finding regarding the Appellant’s credibility that I am unable to make on the evidentiary record before me. In that way, I find that a fair and just summary disposition is not possible.

Since the Court could not assess the witness’ credibility, it was not an appropriate case for Summary Dismissal and a Trial was warranted.


Urban Square Holdings Ltd v Del Fisher Insurance Inc, 2025 ABKB 54

At issue was whether service of a claim should be validated in circumstances where a courtesy copy of the filed claim had been sent to counsel for the Defendant with a letter indicating that the Plaintiff was “not formally serving it at this time”. The claim was filed March 22, 2019 and a courtesy copy was forwarded to counsel March 26, 2019. Counsel had various subsequent discussions and Plaintiff counsel served a draft Affidavit of Records. After the 1 year period for service had elapsed counsel for both sides were having settlement discussions. Discussions were not successful, and on January 21, 2021 counsel requested a copy of the Affidavit of Service. It had not been served, and Plaintiff counsel applied for an Order Validating service on the basis that the Defendants had knowledge of the claim, and counsel mistakenly believed he had served it. He relied on the fact that the Defendants continued to deal with the claim without raising any service issues.

The Court accepted that service was a practical question, and the key issue is whether the claim was likely brought to the attention of the party to be served:

[40]           As set out by W.A. Stevenson & J.E. Côté, in the Alberta Civil Procedure Handbook 2022, (Edmonton: Juriliber, 2022) at p 11-51:

Service is a practical question, not a theoretical or ritualistic one, and unconventional forms of service which actually produce notice will suffice … It does not matter whether service is direct or indirect.

[41]           In order to validate service under Rule 11.27, the Court must be satisfied that there was a method of service that brought or was likely to bring the claim to the attention of the party to be served.

The Court also accepted that simply sending a courtesy copy of the claim is not sufficient for service:

[42]           In this case, when FLC provided BLG with a copy of the Claim, it is clear that the copy it provided was on a courtesy basis, and so service was not effected as of March 26, 2019. The fact that service was not effected as of March 26, 2019, is not disputed by Urban. If that was the only communication that Urban was relying on to prove service was effected, it would be in trouble, as the Court has found that delivery of a statement of claim by such a method does not constitute service. For example, in Hansraj v Ao2004 ABCA 223 [Hansraj], a case cited by AJ Mason in her oral reasons, a letter to the adjuster accompanying a copy of the statement of claim indicated that it was a courtesy copy, that no statement of defence was required, and that notice would be given before any further steps taken. The Court of Appeal in Hansraj stated, at paras 106-107:

In my view, the phrase “courtesy copy” means a copy for information, not for action; it negates service… and the phrase “has now gone out for service” means that it is not yet served and will be served by other means in the future. That too negates service. The following sentence in the letter about not requiring a defence is not quite so clear, but it certainly does not do anything to negate the first sentence.

In my view, viewed as a whole, this letter and enclosure plainly did not constitute service upon anyone.

However, in this case, given the subsequent correspondence between counsel, and specifically a letter from defence counsel asking for producible records as well as letters suggesting that parties were looking at questioning dates, the Court accepted that notice of the claim had come to the Defendant’s attention and validated service:

[46]           The January 13, 2020, letter from FLC to BLG put Fisher on notice that it was proceeding with the litigation through questioning and the “filing” of Urban’s Affidavit of Records. The January 13, 2020, letter expressly asked for mutually convenient dates, and when reading the words in the letter all together, could only mean mutually convenient dates for questioning.

[47]           Fifteen days later, on January 28, 2020, FLC sent BLG further notification that it was moving forward with the litigation by serving BLG with Urban’s sworn Affidavit of Records. This in my view is a step that advances the litigation and can only mean in the context of all the communications exchanged up to that point, that Urban was proceeding with advancing the litigation to hopefully also effect a resolution. As was stated by AJ Mason in her oral reasons, by this time, Urban was “proceeding down two tracks, attempting to resolve the matter outside of the action and proceeding with litigation steps in the action”.

[48]           Despite that the letters FLC sent to BLG on January 13, 2020, and January 28, 2020, were marked “without prejudice”, I accept that these letters were inadvertently marked as such, as nothing contained in the letters, or any enclosure contains any communication that is protected by settlement privilege.

[49]           Following Urban’s notice through its counsel that it was proceeding with the litigation, Urban continued to try to resolve the dispute through settlement negotiations. Urban’s actions, in my view, in its attempts to resolve the dispute before the issuance of its Claim, and after the issuance of its Claim, were in accordance with the purpose and intention of the Rules, in looking to resolve the dispute in a timely and cost-effective way with or without the assistance of the Court: see Rule 1.2.


Ranger v Precision Geomatics Inc., 2025 ABKB 45

In appealing an order dismissing the claim for inordinate delay under Rule 4.31 the Plaintiff pointed to a 48 month delay attributable to the defendant, as well as the fact that a Form 37 certifying that the matter was ready for Trial had been signed by the Defendant, and filed in January, 2021. The Court concluded that by signing and filing the Form 37, the Defendant waived its right to complain of delay up to that point:

[48]           I also note that the Defendant executed a Form 37 certifying this matter was ready for trial which was filed on January 21, 2021. In 422252 Alberta Ltd. v Messenger2019 ABQB 251 at para 24, the Court indicated that a contextual analysis is required and that a party that agrees to set a trial date may be barred from seeking to dismiss the action for delay: see also Trademark Calgary Holdings Inc v Hub Oil Company Ltd.2019 ABQB 42 at para 93. When the Defendant executed the Form 37, it was certifying that the matter was ready to proceed to trial and was waiving its right to complain of the delay up to that point.

In late 2022 the Plaintiff applied to set the matter for Trial, and the Court directed that the Trial be scheduled for after March 1, 2024. 

[49]           On December 12, 2022, Mr. Ranger filed an application to set this matter down for trial resulting in Justice Little’s Order on January 11, 2023. As a result of Justice Little’s Order, this matter was directed to be scheduled for trial after March 1, 2024, and was scheduled for trial March 4-8, 2024. Setting this matter down for trial took just less than 10 years from the date of service of the Statement of Claim.

However, the Trial dates were vacated because of the Defendant’s application for inordinate delay. The Court concluded that the delay after the Defendant filed its application could not be attributed to the Plaintiff and concluded that the delay was excusable:

[50]           Instead of proceeding to trial, the trial dates were vacated because Precision filed its application under Rule 4.31 in November 2022. The application was heard and decided by the Applications Judge on March 26, 2024. The delay after the Defendant filed its application and any corresponding prejudice, if any, cannot be attributed to Mr. Ranger.

Further, the bare assertion of fading memories was insufficient to establish significant prejudice. The Court concluded that this was a borderline case with respect to Rule 4.31 and that only the most extraordinary borderline cases are dismissed:

[56]           In my view, this was a borderline case with respect to Rule 4.31. Rule 4.31 is permissive and requires an exercise of judicial discretion whereas Rule 4.33 is mandatory. The analysis pursuant to Rule 4.31 involves looking at the “whole action”: see Babiuk at para 60. Only the most extraordinary borderline cases are dismissed: Jordan v de Wet2024 ABKB 462. The default position in such circumstances is to let the action proceed so that that the Plaintiff can have their day in Court: Song v Her Majesty in Right of Alberta2021 ABCA 361 at para 63.

[57]           Borderline cases favour allowing a matter to proceed to trial and having the matter decided on the merits. In my view, having regard to the action as a whole, including the lack of a finding of significant prejudice, this borderline case should not be dismissed under Rule 4.31.

The appeal was allowed and the matter allowed to continue.


Secan Association Inc. v Cannan, 2025 ABKB 38

The Court concluded that an ambiguous answer to undertaking, which needed to be clarified, was a thing that advanced the action in the face of a dismissal application under Rule 4.33 for 3 years of delay:

[35]           In all of the circumstances it cannot be said with any confidence that the undertaking response of March 17, 2023 was merely perfunctory, or one on which nothing hinged. It can be said with greater confidence that it was an ambiguous undertaking response that needed to be clarified, here by way of further litigation.

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