In some cases, service may be accomplished by email (or deemed good and sufficient), including email upon the servee’s counsel.

Alberta Human Rights Commission (Director) v. Vegreville Autobody (1933) Ltd., 2018 ABCA 246 [4282]

FACTS AND ISSUES:

A Complainant filed a complaint against an auto body business with the Alberta Human Rights Commission. The tribunal allowed the complaint and awarded the Complainant $56,000 in damages. The defendant business filed an appeal, serving the Director of the Commission (to the Director’s counsel) and the tribunal by email. The defendant also emailed the Notice of Appeal to the Complainant on 30 November 2017 (receipt of which was acknowledged) which was 10 days after the service deadline, followed up by registered mail (received 8 December 2018).
 
At the chambers hearing, counsel for the Director (who had been served on behalf of the Director) also appeared for the Complainant.
 
The Director applied for an Order striking out the appeal for not having been “served” in time The chambers judge dismissed the application, finding service on the Director and tribunal to be good and sufficient within the meaning of Section 48 of the Alberta Human Rights Act, RSA 2000, c A-25.5, which provides as follows:

43(1) A notice or other document required by this Act or the bylaws to be filed with the Commission is deemed to be properly filed if it is

(a)     left in person with the Commission at one of its offices, or
(b)     sent to any office of the Commission by registered or certified mail.

(2) A notice or other document required by this Act or the bylaws to be served on any person is deemed to be properly served if it is

(a)     served personally on that person, or
(b)     sent by registered or certified mail to the last address for that person known to the Commission.

(3) Where it is necessary to prove filing or service of any notice or document,

(a)     if filing or service is effected personally, the actual date on which it is filed or served is the date of filing or service, and
(b)     if filing or service is effected by registered or certified mail, filing or service shall be conclusively presumed to have been effected on the date of receipt or 7 days after the date of mailing, whichever occurs first.

She also found that service on the Director amounted to service on the Complainant.
 
HELD:  Appeal allowed; Human Rights appeal struck.

The Court was unanimous in holding that email service upon the Director and the Tribunal within the time limit was valid service. It was held that s. 43 of the Act was “simply a deeming provision which does not preclude effective service in some other fashion so long as the affected party ‘get[s] notice of the claim against it”: Sandhu v MEG Place LP Investment Corporation, 2012 ABCA 266 (CanLII) at para 19, 542 AR 12”.

However, Majority held that the chambers judge erred in concluding that service upon the Director constituted service upon the Complainant, who had received no notice of the appeal until after the statutory service deadline, notwithstanding that she was represented by the same counsel as the Director at the chambers hearing.

COMMENTARY: 

Accordingly, service by email may be recognized as valid, depending on the Rule or statute under which service is accomplished in a given case. Where the Rule or statute provide for service by mail or registered mail, the Court may interpret that as a deeming provision that does not preclude service by other means, as long as it gets to the servee. In our view, it is still wise to obtain an agreement that service by email is sufficient from the serve, either before or after emailing the servee or his/her counsel.