Legalviews Personal

The King's Bench has properly brought to the attention of the Bar a problem which it says is fairly common, but not much written about. Evidently contracts such as leases or mortgages often contain a clause permitting very slack or symbolic methods of service. That matters, because R. 11.3 allows and makes effective service at a place, in a mode, or to, something or someone agreed on in a contract.

The Rule sounds fine, but some contracts give unreasonable means of service. The one in the case just published allowed service by placing on the lands or any part thereof if unoccupied. Here in mid-winter a statement of claim to take back land because of a mortgage default, was attached to a child's toy sitting out in an open field, probably farm land.

I am sympathetic to those trying to get service on someone who has moved without telling anyone of his or her new address. But the object of the exercise is to give notice as best one can. Posting something up on unoccupied land where few if any would see it, is not really an attempt at notice. It is either symbolism or a thin excuse for disobedience.

Sympathy or fairness may not be legally decisive. What is the legal effect of the service clause in the mortgage? The clause is quite long, but its subject is described near the beginning of the clause. It is unilateral actions by the mortgagee without a court order, and then giving "any notice".

Whether or not that reading is correct, the mortgagee has another problem. It is true that among several purposes of a statement of claim, one is to disclose certain facts to the defendant. The notice to defendant is not a part of the body of the statement of claim; it is an endorsement at the end. Notice is far from the only purpose of a statement of claim. It starts a court proceeding and imposes a number of immediate duties on the defendant. It is not worded as the plaintiff's order; it is the court's and the Rules' order. The duties are not imposed by the plaintiff; they are imposed by the court. Many long contracts contain a clause giving addresses for each party to which "notices" may be sent. But those are usually understood to be notices provided for by the contract, or maybe some other notices needed at common law. Lawyers would not read such clauses as referring to service of a statement of claim or writ of summons.

I doubt that the present Rules of Court ever use the word "notice" when referring to a commencement document. They do not do that in Parts 1 to 4, 6, or 11.

Rule 11.3 says that a contract may contain an agreement on service: place for service, mode of service, or person to be served. "Service" and "serve" are well-known legal terms. The contract can choose methods which are original, new, or ingenious, but they must be methods of "service". So they must be attempts to give the document or information about it, to the person to be served. Therefore, they must have some realistic chance of having the information reach him or her.

Sealing something up and throwing it in the river, or putting it inside someone's garbage can, would not be service. Nor is posting up a document where this defendant is unlikely to go and where the general public rarely goes.

The contract here says expressly that the mode of "service" used here can be used only if the land is unoccupied. Therefore, using that method would never inform any given individual unless the posting was within a few feet of a very busy sidewalk.

It is a prime rule of interpreting a contract that all parts of it be read together, and interpreted so as to work together. Interpreting "service" or "notice" to mean some act which would never become known, would be a highly unlikely and contradictory interpretation.

The case discussed here is Stephen Smith RRSP Plan v. Walker 2026 ABKB 171 (AJ Mar 9).

– Hon. J.E. Côté

NOMINAL SERVICE CLAUSES