Executive Summary: Key Legal and Evidentiary Issues

• Application by The Bank of Nova Scotia for substitutional service in a foreclosure action of approximately $900,000 plus costs and interest was dismissed.

• The plaintiff’s evidence consisted of an unanswered email, a land titles address, and a demographic search with redacted update information, with no efforts at personal service disclosed.

• The Court emphasized that personal service of commencement documents is the starting point because it provides comfort that the document has come to the defendant’s personal attention.

• The judge found there was no affidavit evidence that personal service was impractical, particularly given the size of the claim and that the defendant apparently resides in Edmonton.

• The Court held that proposing substitutional service of commencement documents by ordinary mail was inappropriate because there is no way to confirm if or when the documents are delivered, unlike courier, process server, or Xpresspost.

• The judge highlighted that plainly deficient desk applications for substitutional service contribute to systemic delay and directed Scotia to bear its own costs for this application, despite an expected mortgage provision for solicitor-and-own-client costs.
   

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Background and facts of the case
The Plaintiff, The Bank of Nova Scotia (Scotia), brought a foreclosure action on a high ratio mortgage with approximately $900,000 plus costs and interest outstanding. The action was brought against two defendants, Oscar Ngoie-Kadila and Francoise Wakabongo Makaseka. The decision was issued by Applications Judge S. Wanke of the Court of King’s Bench of Alberta, in reasons dated January 5, 2026, after a desk application was reviewed on December 18, 2025. The application before the Court concerned only how to serve one defendant, Ms. Makaseka, in relation to the foreclosure.

The substitutional service application and evidentiary record
Scotia applied by way of desk application for an order for substitutional service in respect of Francoise Makaseka. In support of the application, plaintiff’s counsel filed a legal assistant’s affidavit. That affidavit set out four key points about efforts to locate and contact Ms. Makaseka. First, counsel sent an email to Ms. Makaseka using an email address provided by Scotia, asking whether she would prefer to be served by email to keep costs low or to provide an address for service, but no response was received. Second, the affidavit stated that Ms. Makaseka is a registered owner of the property that is the subject of the foreclosure, and that the certificate of title shows an address for her which was provided to land titles when the transfer was registered in 2023. Third, counsel obtained a demographic search on December 11, 2025, which showed a different postal address for her, but the search document was redacted so that the judge could not tell when she last updated her demographic information. Fourth, the affidavit was sworn in support of an application for substitutional service by regular mail to both the land titles address and the demographic search address, and by email to the email address provided by Scotia.

Court’s analysis on personal service and procedural fairness
The judge began by stating that the starting point is that commencement documents are to be personally served. For individuals, personal service typically requires leaving the commencement document with the individual, having the individual acknowledge receipt by signing for a recorded mail delivery of the commencement document, or acknowledging receipt by email. The decision quoted earlier case law emphasizing that the important aspect of personal service is that it gives the Court comfort that the document has come to the personal attention of the defendant or respondent. The judge explained that the rules governing service are designed to safeguard basic procedural fairness and that, without proper notice, a party may be deprived of the opportunity to be heard. Against that backdrop, the Court reviewed Rule 11.28 of the Alberta Rules of Court, which allows for substitutional service only on affidavit evidence that personal service is impractical. The judge found there was no such evidence on the record.

Lack of efforts at personal service and concerns with ordinary mail
The Court noted that this was an action for close to a million dollars and that the defendant in question apparently resides in Edmonton. Despite that, the affidavit disclosed no efforts at personal service at all. The decision specifically observed that there was nothing in the facts to suggest that sending a process server to serve the defendant was cost prohibitive or otherwise impractical. The judge further held that proposing substitutional service of a commencement document by ordinary mail was inappropriate because there is no way to confirm when or if the document is delivered. By contrast, courier, process server, or Xpresspost all provide delivery confirmation, and the decision stated that the significant benefit of knowing that commencement documents were delivered and when far outweighs the modest additional cost of those services. On this basis, the application for substitutional service was dismissed.

Systemic issues with deficient desk applications
The judge observed that the facts and law in this matter were neither novel nor complex, but used the application as a “prime example” of multiple plainly deficient desk applications that come before applications judges daily. Substitutional service applications were described as a significant portion of these desk applications, and, in the judge’s experience, a third or more are rejected due to improper evidence or orders drafted so poorly they do not merit correcting in PDF. The decision noted that these deficient applications often come from firms with high volumes of files requiring substitutional service orders. The judge went on to explain that such deficient desk applications contribute to a significant backlog in filing at the clerks’ office. Each application requires clerks to file the documents and submit them to a justice or applications judge, who then returns deficient applications with an explanation. Clerks must process the rejection and return it to counsel, after which counsel typically submit revised or additional materials that must again be filed and uploaded for review. Some applications go through this process multiple times, straining judicial resources. The judge emphasized that desk applications are the responsibility of counsel on the file, not their legal assistants, and that it is incumbent on counsel to ensure that desk applications have proper evidentiary support and a proper form of order the first time.

Costs, mortgage provisions, and overall outcome
In the final part of the reasons, the judge stated an expectation that the plaintiff’s mortgage provides for costs on a solicitor-and-own-client, full indemnity basis. Notwithstanding any such contractual provision, the Court directed Scotia to bear its own costs for this desk application and for the review of the decision. The judge expressly stated that this application was not a reasonable step for Scotia to take on the evidence. The application for substitutional service was therefore dismissed, and the matter proceeded with Scotia responsible for its own costs arising from this unsuccessful desk application. There is no quantified monetary award, costs, or damages ordered in favor of any party.