YOU GOT SERVED

You’ve Been Served

You have just received Court documents, and you do not know what to do with them. Now what? The worst thing you can do is to put it in your "to deal with later" pile. Why? Chances are there is a deadline to respond, the passing of which could lead to negative consequences for the strata corporation.

Before explaining these consequences, a primer on the service of documents on a strata corporation is useful. Section 64 of the Strata Property Act provides that service on a strata corporation of a notice of a proceeding in any court can only be effected by:

(a) personal service on a council member; or

(b) mailing it, by registered mail, to the strata corporation at its most recent mailing address on file in the Land Title Office.

Section 64 provides only for two ways to serve a notice of a proceeding. The method of service is chosen by the person who is providing the notice of a proceeding. Therefore, if a council member receives court documents, it cannot be assumed that those documents were also sent to other council members or the property manager. For similar reasons, it is extremely important that the strata corporation’s mailing address filed at the Land Title Office is kept current. If the address is no longer valid, the strata corporation could be properly served by having the documents delivered to the mailing address filed at the Land Title Office, but the strata corporation will be completely unaware of the court proceedings.

Sometimes, court documents are not properly served, but still reach the council member or the correct mailing address. For example, the court documents are sometimes left under the front door or in the mailbox of a council member’s home. Alternatively, the court documents are sent by regular mail or courier to the correct mailing address. If the documents eventually come to the attention of at least one council member or the property manager, please obtain legal advice before deciding to ignore the court documents simply because the strata corporation has not been properly served. While improper service can be a good excuse for not responding on time, a Judge is less lenient when it is determined that the strata corporation simply chose to ignore the court process, despite being aware of it.

The following are some of the most common types of notices of a proceeding with which a strata corporation could be served:

(a) Notice of Claim (Small Claims Court);

(b) Petition (Supreme Court);

(d) Notice of Motion (Supreme Court);

(e) Counterclaim (Supreme Court);

(f) Third Party Notice (Supreme Court);

(g) Notice Beginning Arbitration (Form L); and

(h) Complaint Form (Human Rights Tribunal).

Each of the above types of proceedings have specific deadlines for a response. For example, a Defendant who is served with a Notice of Claim has 14 days from the date upon which they are served to file a Reply. Responding to a Petition, Writ of Summons, Third Party Notice or Counterclaim requires the filing of an Appearance within 7 days. A Response to a Notice of Motion must be delivered within 8 days. To respond to a Notice Beginning Arbitration, a Form M – Notice of Reply must be delivered within 2 weeks. A Response to Complaint Form must be delivered within 35 days.

If responses are not filed or delivered within the time limit, the person initiating the claim could obtain Default Judgment, which is an Order granting that person what they are seeking without having to prove his or her case. Although you can apply to set aside a Default Judgment after it has been granted, to do so requires the strata corporation to bring a Court application, and provide evidence of the following:

(a) the strata corporation did not deliberately or willfully fail to file an appearance or defence;

(b) the application to set aside the default judgment is brought by the strata corporation with no delay from the time the default judgment comes to its attention, or if there is a delay, there must be a reasonable excuse;

The evidence that must be provided will be in the form of an Affidavit (which is a statement, made under oath, by the person with direct knowledge of the facts).

Bringing an application to set aside Default Judgment should only be required in exceptional circumstances. Strata corporations want to avoid having to bring such court applications because they are expensive, and because there is a risk that the Court will refuse to set aside the Default Judgment. Although no one wants to deal with court proceedings, it is necessary to do so in order to avoid jeopardizing the strata corporation’s defence. If the strata corporation is served, go and talk to a lawyer. A short consultation soon after you have been served will help the strata council determine the following:

(a) If the proceeding is one in which the strata corporation needs to hire a lawyer. The lawyer can tell you whether the claim involves simple issues that the strata corporation could attempt to defend themselves.

(b) The date upon which a response must be filed or delivered, or help you obtain an extension.

(c) How to prepare the response that must be delivered or filed, or alternatively, the lawyer can prepare the response on your behalf.

(d) What issues to consider in defending the claim, and whether the strata corporation should consult its insurer, who might be obliged to pay for the strata corporation’s defence.

A single consultation at the beginning of the Court proceeding will help steer the strata corporation in the right direction, and will cost substantially less than having to bring an application to set aside default judgment.

Often, the address filed in the Land Title Office is that of the strata corporation’s property manager. Therefore, a notice of a proceeding is often served upon the property manager’s office. As a result, property managers should have systems in place to deal with notices of proceedings that are delivered to their office. When the document arrives, the date and time the document is delivered to the office should be noted either directly on the document or in some other safe place. The date and time is important as it determines the deadline upon which a response must be delivered. Also, a copy of the notice of a proceeding should be immediately sent to the strata council, so that its members can decide what steps to take. Property managers are not lawyers, and therefore are not expected to know court processes or to understand all of the implications of the court documents. As a result, property managers should consider recommending to the strata council that its members obtain some initial legal advice to determine a course of action. Taking these steps should avoid, in most circumstances, the need to bring an application to set aside a default Judgment.

Veronica P. Franco