Date: 20010608
Docket: T-1133-00
Neutral Citation: 2001 FCT 627
BETWEEN:
HER MAJESTY THE QUEEN
Plaintiff
- and -
MURRAY TRUDGEON
Defendant
REASONS FOR ORDER
ON PLAINTIFF'S MOTION FOR A VALIDATION OF SERVICE
PURSUANT TO RULE 147
SIMPSON J.
Background
On March 5, 2001 the Plaintiff provided its response to a Notice of Status Review issued by this Court. Therein the Plaintiff informed the Court that the Statement of Claim in this action, which was filed on or about June 29, 2000, was sent by registered mail and received and signed for by the Defendant on February 19, 2001. This information was presumably based on Canada Post's Delivery Confirmation Form number RT414741343 which shows that a registered letter was signed for by "Trudgeon" on February 19, 2001. The Plaintiff also advised that it simply required an extension of time to file its affidavit of service prior to negotiating a settlement or moving for default judgment.
The Court accordingly issued an order dated May 1, 2001 extending time for the filing of the affidavit of service to May 11, 2001 and ordering the Plaintiff to move for default judgment on or before June 8, 2001 if the claim was not settled by that date.
However, it appears that, having reviewed the file, the Plaintiff has changed its mind and is now of the view that the Defendant was not served on February 19, 2001.
Against this background the Plaintiff has filed a notice of motion dated May 7, 2001 pursuant to Federal Court Rule 147 asking the Court to:
(i) validate an attempt to serve the Statement of Claim on July 25, 2000
(ii) grant default judgment
In support of the motion the Plaintiff has filed the affidavit of Fereen Bravar sworn on May 7, 2001 (the "Affidavit"). Exhibit B to the Affidavit is a second Canada Post Delivery Confirmation Form (the "Form"). It bears number GN787905718 and shows that on July 25, 2000 a "D" Trudgeon signed for a registered letter (the "Letter"). The Affidavit says that the Letter was dated July 18, 2000 and enclosed the Statement of Claim in this action.
The Form indicates that "the item has been successfully delivered to the customer". However on its face the Form shows that, although the Defendant is Murray Trudgeon it was a "D" Trudgeon who signed for the Letter. Accordingly service was not effected under Rule 128 (1) (e). Further, the Form does not identify D. Trudgeon as an adult or indicate whether D. Trudgeon is male or female and it gives no information which shows that service was effected under Rule 128 (1) (b). It says nothing about whether D. Trudgeon is related to the Defendant and does not indicate whether D. Trudgeon resides at the address in Lamont Alberta.
However, the Affidavit indicates that Lamont Alberta was the address used by the Defendant in his application for an advance payment under the Prairie Grain Advance Payments Act. As well, Ms. Bravar deposes in paragraph 5 of the Affidavit that, to the best of her knowledge and belief, D. Trudgeon is a "known relative" of M. Trudgeon. However Ms. Bravar provides no reason for her belief and I can only assume that she has relied on the fact that the Defendant and D. Trudgeon have the same surname and on the fact that D. Trudgeon was present at the Defendant's address.
The Plaintiff also relies on the fact that it has corresponded with the Defendant's solicitor, Ronald Poitras. However, nothing in the text of the Affidavit or in Exhibit D to the Affidavit indicates that the Defendant's lawyer has been retained for the purpose of this action. Accordingly, I have determined that the fact that the Plaintiff has corresponded with the Defendant's lawyer does not support a finding that the Defendant is aware of this action.
Conclusions
The issue on a motion under Rule 147 is whether a judge is satisfied that the Statement of Claim has come to the Defendant's notice. Although the evidence is thin, I have concluded that the test has been met because I think it reasonable to believe that someone located at the Defendant's address who was old enough to sign for the Letter and who had the same surname as the Defendant would have given the Letter to the Defendant.
Accordingly an order will be made validating service as of July 25, 2000 and default judgment will also be signed.
Sandra J. Simpson
JUDGE
Ottawa, Ontario
June 8, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE:HER MAJESTY THE QUEEN v. MURRAY TRUDGEON
NOTICE OF MOTION DISPOSED OF IN WRITING
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE SIMPSON
DATED: JUNE 8, 2001
WRITTEN REPRESENTATIONS BY:
MISS FEREEN BRAVAR FOR PLAINTIFF
MISS PAULA HANNA FOR PLAINTIFF
NOT REPRESENTED FOR DEFENDANT
SOLICITORS OF RECORD:
MR. MORRIS ROSENBERG FOR PLAINTIFF
DEPUTY ATTORNEY GENERAL OF CANADA
OTTAWA, ONTARIO
NOT REPRESENTED FOR DEFENDANT