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Background and factual context
The dispute arises out of a condominium construction project in Alberta involving the installation of window components. The respondents, 26th Avenue River Holdings Limited Partnership, 26th Avenue River Investments Inc., and Ledcor Construction Limited, allege that the appellant, Winspia Co. Ltd. (a South Korean corporation), its Canadian affiliate Winspia Windows (Canada) Inc., and another South Korean entity, Han Min International Chemical Inc., were liable for deficiencies discovered in these window components. The respondents filed a statement of claim on October 8, 2020. Their evidence later emphasized that the claim was filed mainly to preserve a limitation date while remedial work to address the deficiencies was still ongoing, and that the remedial work only concluded shortly before they took significant steps to serve all defendants. On September 27, 2021, just before the one-year deadline to serve the claim, the respondents served the statement of claim on Winspia’s Canadian affiliate. However, the South Korean defendants, including Winspia Co. Ltd., had not yet been served. Because those defendants were abroad, service had to be effected in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Convention), a mechanism that typically involves transmitting the documents to a foreign Central Authority (in this case, the Korean Central Authority) and awaiting its execution of service.
Initial extension of time for service
Faced with the imminent expiry of the one-year service period and the practical difficulty of completing Hague Convention service in time, the respondents applied ex parte under Rule 3.26 of the Alberta Rules of Court for an extension of the time to serve the South Korean defendants. In their supporting affidavit evidence, they explained that the statement of claim had been filed largely to preserve the limitation date while remediation was ongoing, that the remediation had only recently concluded, and that meeting the one-year service period via the Hague Convention on South Korean parties would be challenging. An applications judge granted the first extension, moving the deadline to January 8, 2022. Following that extension, the respondents acted on their plan to effect foreign service. They translated the pleadings and supporting documents into Korean and shipped them in October 2021 to the Korean Central Authority, the body responsible for executing foreign service requests under the Hague Convention. Once the materials were in the hands of this Authority, the respondents had very little direct control over the timing or mechanics of service.
Second extension of time and service in South Korea
As of early January 2022, the Korean Central Authority had not yet confirmed that it had served Winspia Co. Ltd. or the other South Korean defendant. On January 4, 2022, the respondents therefore applied again ex parte, this time invoking Rule 3.27(1)(c), which requires “special or extraordinary circumstances” arising from the conduct of the defendant or a non-party before a further extension will be granted. Their evidence showed they had already done what they reasonably could: translating the documents, sending them to South Korea in October 2021, and entrusting them to the Korean Central Authority. The problem was that this non-party Authority had not yet reported back on service. The applications judge granted a second extension, adding six more months and setting July 8, 2022 as the new deadline for service. Shortly after this second extension was granted, on January 24, 2022, the Korean Central Authority successfully effected service on Winspia Co. Ltd. This meant that service was completed within the extended period, but only after considerable delay attributable to the foreign service process and the conduct of the non-party Authority.
Appellant’s attempt to set aside the extension orders
On May 5, 2022, Winspia Co. Ltd. applied to set aside both extension orders. It argued that the respondents had failed to provide sufficient justification for the initial ex parte extensions and that the chambers judge, and the applications judges below, had been too lenient in accepting their explanations. An applications judge dismissed Winspia’s attempt to set aside the orders, and Winspia appealed that dismissal to a chambers judge. The chambers judge heard the matter de novo and ultimately dismissed the appeal, issuing what the Court of Appeal refers to as the Chambers Decision (2025 ABKB 243). Regarding the first extension under Rule 3.26, the chambers judge accepted that the respondents’ explanation for not attempting earlier service was reasonable in the circumstances. The claim had been filed to preserve the limitation period while remediation was ongoing; efforts to pursue formal service were only ramped up once that remediation had finished. She specifically found there was no intention to delay and no prejudice to the defendants. Turning to the second extension under Rule 3.27(1)(c), the chambers judge held that the test for “special or extraordinary circumstances” was satisfied. She stressed that this is an “individualized fact driven” analysis in every case, and in this instance she concluded the respondents were not procrastinating or delaying, but rather were dependent on the Korean Central Authority—a non-party whose timelines and responsiveness they could not control—for service under the Hague Convention.
Issues about evidence, disclosure, and “bootstrapping”
On appeal to the Court of Appeal, Winspia argued that the chambers judge erred by relying on excerpts from a cross-examination of the respondents’ affiant, conducted after the ex parte extension orders had already been granted. The appellant invoked the principle that ex parte applicants must make full and frank disclosure at the outset and suggested that allowing later “bootstrap” evidence to cure earlier defects undermines that duty. The Court of Appeal acknowledged that attempts to bolster an ex parte record after the fact should be treated with caution, as improper bootstrapping could dilute the obligation of complete disclosure. However, the Court noted a critical factual distinction here: the cross-examination evidence was elicited by counsel for the appellant, not adduced unilaterally by the respondents, and the affiant’s answers were consistent with the original affidavit evidence. Both at the ex parte stage and on cross-examination, the explanation remained that the statement of claim was filed to preserve a limitation period while remedial work continued, and that service efforts were delayed until that work concluded. The Court held that, in these circumstances, the chambers judge’s reference to the cross-examination transcript did not undermine the integrity of the ex parte process or violate the duty of full disclosure.
Assessment of diligence, delay, and reasons for not serving sooner
Winspia further argued that the chambers judge unreasonably accepted the respondents’ explanation for not attempting service earlier. It said that waiting for remedial work to finish and relying on the inherent slowness of foreign service processes are not valid reasons to defer service. The applications judge had himself noted that the respondents’ reasons for not serving earlier were “not particularly strong.” Nevertheless, the chambers judge weighed those reasons together with her findings that the purpose of renewal was not to stall the action and that there was no prejudice to the defendants. On that combined assessment, she refused to set aside the first extension. The Court of Appeal characterized this as a reasonable exercise of discretion. It reiterated that decisions to extend time for service of a statement of claim are discretionary; absent an error of law or principle, appellate courts will only interfere where the result is unreasonable. On the record, there was no such unreasonableness.
Special or extraordinary circumstances and the Korean Central Authority
The heart of the dispute over the second extension lay in Rule 3.27(1)(c), which requires “special or extraordinary circumstances” resulting from the conduct of the defendant or a person who is not a party. Winspia insisted that treating the involvement of the Korean Central Authority as sufficient would mean that any case involving Hague Convention service on a foreign defendant would automatically qualify for an extension, effectively gutting the rule’s threshold. The chambers judge had expressly rejected the idea of a blanket rule and grounded her decision in particular facts. She found that the respondents were diligent, were not procrastinating or delaying, and had to rely on unrelated third parties to translate the documents and to effect service. The Korean Central Authority, the only means of service in South Korea, was an uncontrollable non-party, the timelines for its action were not precisely known, and it failed to respond to counsel’s requests for updates. The Court of Appeal emphasized that this was the individualized, fact-driven analysis Rule 3.27(1)(c) requires. It agreed there was no basis to disturb the finding that special or extraordinary circumstances existed in this specific context. Winspia also argued that extraordinary circumstances could not be said to arise “solely” from the conduct of a non-party because the respondents themselves had delayed by not attempting foreign service earlier, before seeking the first extension. The Court of Appeal referred to prior authority noting that extensions are, by definition, needed only when the plaintiff has missed the time to serve; many situations could, in hindsight, have been avoided if service were attempted earlier. The central question remains whether special or extraordinary circumstances exist under Rule 3.27. The chambers judge had been acutely aware that the respondents purposefully waited for remediation to conclude before moving aggressively on service, but she still concluded that the later delay triggering the second extension flowed from the Korean Central Authority’s conduct. The Court found no error in that reasoning.
Rule 3.29 and the contents of the service package
Another argument focused on Rule 3.29, which requires that when a statement of claim is served within an extension of time, it must be accompanied by a copy of the order granting the extension or written notice of the order. Here, the respondents had shipped the service package to the Korean Central Authority in October 2021, before the second extension order was granted in January 2022. Once the materials were with the Authority, there was no practical means to add further documents, and the Authority did not communicate further. Counsel for the respondents later provided counsel for the appellant with a copy of the second extension order well within the extended time for service. Winspia argued that this sequence meant the respondents had failed to comply strictly with Rule 3.29, and that this should invalidate service. The Court of Appeal rejected that position. Considering the realities of foreign service, the timing of the second extension, and the later provision of the order directly to opposing counsel, the Court held that non-compliance with the rule in this particular scenario was not a proper basis to set aside service.
Whether permission to appeal was required
Before turning to the merits, the Court of Appeal had to decide whether Winspia needed permission (leave) to appeal at all. Rule 14.5(1)(b) requires permission for appeals from “any pre-trial decision respecting adjournments, time periods or time limits.” The Court noted that the orders in question were applications of Rules 3.26 and 3.27, found in the subdivision of the Rules titled “Time Limit for Service of Statement of Claim,” and that Rule 3.26(1) expressly refers to the “one-year time limit” for service. On its face, therefore, the case fell squarely within Rule 14.5(1)(b). Winspia argued that no permission should be required where the extension decision could effectively end the litigation, where the decision is governed by a legal test rather than pure discretion, or where an appeal would be a proportionate response. The Court held that none of these distinctions is grounded in the text of the rule. It emphasized that, unlike under the old practice directions, “the effect of the decision sought to be appealed no longer determines whether the permission requirement applies.” The rule applies even when the decision may affect substantive rights. Winspia also attempted to frame its grounds of appeal as being about whether service was properly effected rather than about time limits. The Court looked past this characterization, observing that the substance of Winspia’s position was that service was improper because the time limit should not have been extended. It refused to accept that artful drafting of grounds could determine whether an appeal is “from any pre-trial decision respecting… time limits.” In this case, there was no question that it was. Because Winspia had not sought permission within the prescribed period, it also needed an extension of time to apply for permission under Rule 14.37(2)(c).
Test for permission to appeal and extension of time
The Court then considered whether to grant an extension of time and permission to appeal. To obtain permission under Rule 14.5(1)(b), an applicant must show: a serious question of general importance; a reasonable chance of success on appeal; and that the appeal will not unduly hinder the action’s progress or cause undue prejudice that is disproportionate to any benefit. When considering an extension of time to seek permission, the Court similarly examines whether there is at least a reasonable chance of success on the proposed appeal. Winspia’s grounds focused on alleged omissions in the chambers judge’s reasons and her application of the correct legal tests to the specific facts. Even if these could be cast as questions of law, the Court concluded they were highly fact-sensitive and did not raise serious questions of general importance. It further noted that the appeal appeared to have delayed the progress of the underlying construction defect action. Most importantly, the Court found no reasonable chance of success on the merits. On that basis, it held that neither an extension of time nor permission to appeal should be granted.
Outcome of the appeal and financial consequences
Having refused both the extension of time and permission to appeal, the Court of Appeal added that, even if it had granted both, it would still have dismissed the appeal on the merits. It found no reviewable error in the chambers judge’s articulation of the legal tests, her reliance on the evidence (including the cross-examination), or her discretionary judgments under Rules 3.26 and 3.27(1)(c). As a result, the original orders extending the time for service, and the chambers judge’s decision upholding them, remain in place. In this Court of Appeal proceeding, the successful parties are the respondents: 26th Avenue River Holdings Limited Partnership, 26th Avenue River Investments Inc., and Ledcor Construction Limited. The appellant, Winspia Co. Ltd., fails in its effort to obtain leave and to overturn the service extensions. The memorandum of judgment does not, however, specify any quantified monetary award, damages, or a particular costs figure in favour of the successful parties. Any ordinary costs that follow the event are not detailed or expressed in dollar terms. On the basis of this decision alone, the total amount of any costs or damages ordered in favour of the respondents cannot be determined.
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Court
Court of Appeal of AlbertaCase Number
2501-0136ACPractice Area
Civil litigationAmount
Not specified/UnspecifiedWinner
RespondentTrial Start Date