Executive Summary: Key Legal and Evidentiary Issues

• Olympia Trust Company sought to validate service of foreclosure documents that were taped to a child's push car on vacant land in late 2025, which the Court found inadequate as actual notice.

• Technical compliance with a boilerplate mortgage notice clause under Rule 11.3 does not constitute valid service of legal process when the clause was not designed to give actual notice.

• No evidence was presented of the respondent's actual receipt of the documents or of any evasion of service, making an order validating service inappropriate.

• The mortgage's notice provision purported to dispense with the requirement to serve altogether, which would effectively change Alberta's court-supervised foreclosure process into a foreclosure system by power of sale.

• Service of the 244 Notice failed to comply with statutory requirements of registered mail, courier, or agreed electronic delivery under the BIA Rules.

• FDMA Notice service was not effected through any method prescribed by the Farm Debt Mediation Regulations, and failure to give proper notice cannot be cured retroactively and makes the action a nullity.

The foreclosure action and attempted service

Olympia Trust Company, in trust for RRSP Plan Number 143059 held by Stephen David Smith, commenced foreclosure proceedings against Ronald Walker in respect of approximately 125 acres of vacant land north of Edson (the Property). In late 2025, Olympia's process server attended the Property and taped various legal documents to the handle of a child's push car sitting in an open sea can in the Property's open field. The documents were delivered on three separate dates: November 26 for the notice under s 244 of the Bankruptcy and Insolvency Act (244 Notice) and the notice under s 21 of the Farm Debt Mediation Act (FDMA Notice), December 15 for the statement of claim (Claim), and December 22 for the amended Claim. Olympia's law firm also emailed the Claim and amended Claim on December 15, 2025 to an email address used by the Defendant in July 2025 when corresponding with Olympia. Olympia then applied by way of desk for an order validating service of each document as of the date it was taped to the toy. A legal assistant's affidavit advised that Olympia does not know where Mr. Walker is, though the affidavit did not disclose the efforts to ascertain his whereabouts.

The notice clause in the mortgage

Central to Olympia's argument was a clause in its mortgage (the Clause) that it relied upon in conjunction with Rule 11.3(1) of the Alberta Rules of Court, which allows commencement documents to be served as agreed to by the parties in the contract that is the subject of the action. The Clause purported to allow notices to be given by leaving them with a person of the age of majority on the land if occupied, or by placing them on any part of the land if unoccupied, or at the option of the mortgagee by publishing them in a newspaper in the Province of Alberta. The Clause further stated that notice would be sufficient even if addressed only "To whom it may concern," and that no want of notice or any other defect, impropriety or irregularity would invalidate any sale made under the mortgage.

The Court's interpretation of Rule 11.3 and service requirements

Applications Judge S. Wanke undertook a thorough analysis of what constitutes a valid agreement for service under Rule 11.3. The Court emphasized that the object of service is notice, and that notice of proceedings is an integral part of the right to be heard (audi alteram partem), which is a rule of natural justice. The caselaw is clear that service exists for one purpose: to give a respondent actual notice, and it is practical and substantive, not a mere formality, as stated in Sandhu v MEG Place LP Investment Corporation, 2012 ABCA 266. Part 11 of the Rules deals with service of documents, but those provisions exist within the Rules generally, which confirm a fair and just court process is a foundational principle. The Court found that formulaic reliance on generic notice provisions in mortgages or similar documents is antithetical to actual notice, as borrowers move, abandon properties, and change phone numbers and email addresses. The Court further held that boilerplate notice provisions that are indifferent as to actual service, particularly in contracts of adhesion or consumer contracts, cannot be agreements for service as intended by Rule 11.3(1). The Supreme Court of Canada, in Douez v Facebook, Inc, 2017 SCC 33, in declining to enforce an otherwise valid forum selection clause, noted that contractual terms between private parties that implicate the court cannot bind the court, and that there is a difference between sophisticated negotiated commercial contracts and consumer contracts or contracts of adhesion.

Why Olympia's notice clause was rejected

The Court found that Olympia's Clause is not an agreement between the parties that: (a) extends to the service of commencement documents, a 244 Notice or a FDMA Notice; or (b) reflects an agreement between the parties as to place, mode or person to be served. Overall, the Clause undermines the importance of personal service, including by purporting to dispense with the requirement to serve altogether. The Court observed that if this Clause were enforceable, it would effectively change Alberta's court-supervised foreclosure process into a foreclosure system by power of sale. The result of relying on this Clause speaks for itself: documents taped to a toy in a vacant field in the middle of winter. The Court declined to validate service of the documents under Rule 11.3(1) of the Rules.

Validating service versus substitutional service

The Court also addressed Olympia's alternative argument under Rule 11.27, which allows the Court to validate technically deficient but substantively sound service. The Court noted that this application conflates validating service with substitutional service. To validate service, the Court must be satisfied that the method of service used brought or was likely to have brought the document to the attention of the person to be served or would have done so but for the evasion of service. In the absence of actual evidence of evasion or that the party received the document, orders validating service should not be used when a substitutional service order is available. Substitutional service orders, by default, must be served along with the documents being served, which helps address the requirement in Sandhu that service must be done in a way that the respondent understands their legal rights are being engaged. The Court indicated that with an appropriate affidavit, substitutional service by email may be appropriate, but an order validating service of the prior emails is not.

Statutory notice requirements under the BIA and FDMA

Regarding the 244 Notice, the Court noted that such notices must be served or sent by registered mail or courier, or if the parties agreed, electronically, under Rule 124 of the Bankruptcy and Insolvency General Rules. Service under the express provisions of the BIA Rules had not occurred, and validating service of the 244 Notice under the Rules was inappropriate for the same reasons set out for the Claim. With respect to the FDMA Notice, which must be given 15 business days before commencing an action or enforcing any remedy against a farmer, the Court observed that failure to do so cannot be cured retroactively and makes the improperly commenced action a nullity, as stated in ss 21 and 22 of the FDMA and Intec Holdings Ltd v Grisnich, 2003 ABQB 993. Unlike the BIA, the FDMA does not expressly import provincial rules or procedure. Under the Farm Debt Mediation Regulations, FDMA Notices must be given to natural person farmers in person or left with an adult at their residence, with a copy mailed the next day or sent by priority post, courier or registered mail addressed to the farmer. The Saskatchewan Court of Appeal in Royal Bank of Canada v Wright, (1989), 74 Sask R 215, held that substitutional service of notices under similar provisions of the predecessor legislation to the FDMA was not permitted, as the intent of the legislature was clearly expressed in the specified methods of service. Olympia had not served the FDMA Notice in any of the ways set out in the FDMA Regulations.

Service on Mr. Hill and the overall ruling

Olympia also sought to validate service of the Claim on a subsequent encumbrancer, Mr. Hill. Mr. Hill acknowledged receipt of the documents by email, and the Court found no order validating service was required, citing Toronto Dominion Bank v Halliday, 2022 ABKB 764. Ultimately, the Court declined to grant Olympia's application to validate service of the Claim, the amended Claim, the 244 Notice, and the FDMA Notice. The respondent, Ronald Walker, did not appear and had no counsel on the application. No monetary amount was awarded or ordered, as the decision addressed the procedural question of whether service had been properly effected. The Court left open the possibility that Olympia could pursue substitutional service by email with an appropriate affidavit.