Executive Summary: Key Legal and Evidentiary Issues

• The court examined whether two ex parte orders extending the time to serve a Statement of Claim complied with Alberta Rules of Court r 3.26 and r 3.27.

• Plaintiffs sought extra time due to the complexity of international service under the Hague Convention and ongoing remedial work.

• Evidence was scrutinized to determine if it justified the timing and efforts to serve foreign defendants, particularly Winspia Co. Ltd. in Korea.

• The threshold under r 3.26 is lower and satisfied by basic evidence and absence of prejudice; r 3.27 requires “special or extraordinary circumstances.”

• Delays were attributed to external parties such as translation services and the Korean Central Authority, not to any fault or strategy by the plaintiffs.

• Both extensions were upheld, and the appeal was dismissed with costs awarded to the plaintiffs.

Facts and procedural history

The dispute concerns a high-rise development project involving allegedly defective insulating glass window products. The plaintiffs—26th Avenue River Holdings Limited Partnership, Avenue River Investments Inc., and Ledcor Construction Limited—filed a Statement of Claim on October 8, 2020, against Winspia Windows (Canada) Inc. (a B.C. corporation), Winspia Co. Ltd. (a Korean company), and Han Min International Chemical Inc. (also Korean), alleging negligent misrepresentation regarding the quality and certification of the window products.

The plaintiffs indicated that the products were manufactured in South Korea by Winspia Co. Ltd. and distributed in Canada by Winspia Windows (Canada) Inc. They commenced the claim to preserve limitation rights while remedial work on the windows was ongoing, work that concluded only in mid-September 2021 after several years of repairs and testing. A report by RDH Engineering confirmed more than 50% of the 1,400 windows were non-performing.

Procedural steps and ex parte orders

The plaintiffs applied for two ex parte extensions to serve the Statement of Claim on the Korean defendants. The First Extension Order, granted under r 3.26, allowed a three-month extension filed before the one-year service deadline. The supporting affidavit by Eric Gerlach explained the plaintiffs’ need for more time due to ongoing remedial work and the complexity of serving in Korea under the Hague Convention. The court found that the plaintiffs made reasonable attempts, such as contacting opposing counsel and confirming addresses via the Korea Trade-Investment Promotion Agency. No prejudice to the defendants was found, and the purpose was not to delay.

The Second Extension Order, sought under r 3.27(1)(c) after the original deadline passed, was supported by affidavit evidence from paralegal Kym Mesley. It detailed the plaintiffs’ diligent efforts to comply with the Hague Convention, including translation of documents and couriering materials to the Korean Central Authority (KCA) on October 28, 2021. Despite delivery to the KCA, no confirmation of service was received before the new deadline. The plaintiffs argued that delays stemmed from the KCA's inaction, not their own conduct.

Discussion of rules and service issues

Under r 3.26, the court noted the relatively low threshold: some evidence of service attempts, a non-delay motive, and lack of prejudice. Under r 3.27, the court required “special or extraordinary circumstances,” which were found here due to uncontrollable delays caused by the KCA, including lack of response and unpredictable processing timelines. The plaintiffs’ quick action following the first order, and the costs incurred in translations ($5,084.11), supported their diligence.

Service via the Hague Convention added procedural complexity. The plaintiffs had no control over the KCA, unlike a private process server. The court accepted that these uncontrollable factors created extraordinary circumstances justifying the second extension.

Outcome of the appeal

Justice Arcand-Kootenay upheld both the First and Second Extension Orders. The plaintiffs were found to have acted diligently and in good faith, with no intent to stall the proceedings. The appeal by Winspia Co. Ltd. was dismissed. The plaintiffs were awarded costs, and the judge invited submissions if the parties could not agree on the amount.

No legal errors were found in the applications judge’s ruling. Both extensions for service were valid, and the case may now proceed with all defendants properly served.