This Action contained three Applications: (1) an Application by the Plaintiff to commence three derivative Actions; (2) an Application by the Defendants to strike the Plaintiff’s claim pursuant to Rule 3.68, and; (3) an Application by the Plaintiffs by Counterclaim seeking the removal of a lis pendens certificate from the title of their land and the release of $350,000 held in trust related to a specific portion of that land. The Plaintiff’s Application to commence three derivative Actions had been resolved by Consent Order and was not considered by the Court in this Judgment.

In addressing the Application to strike the Statement of Claim pursuant to Rule 3.68, the Court embarked on a detailed examination of the Plaintiff’s Statement of Claim. The Court considered whether the Pleadings, as presented by the Plaintiff, were indeed frivolous or lacked a reasonable cause of action. Noting that the Statement of Claim was not perfect, the Court concluded that the necessary legal thresholds that would warrant striking an Action had not been met. However, the Court stated that the Defendants could leverage other avenues to strike the Statement of Claim, such as Summary Dismissal.

Turning to the Application brought by the Plaintiffs by Counterclaim, the Court evaluated the evidence to determine whether maintaining the certificate of lis pendens was justified or if it unduly burdened the Applicant's property rights. Ultimately, the Court found that the Plaintiffs by Counterclaim were, in essence, seeking Summary Judgment, engaging Rule 7.3. Referring to the Decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49, the Court concluded that based on the evidence before the Court, no triable issues had been raised. In addition, the Court noted that the lis pendens engaged the Land Titles Act, RSA 2000, c L-4 (“LTA”). Following its review of the LTA, the Court held that the lis pendens contravened s. 149 of the LTA.

In conclusion, the Court rejected the Defendants' Application to strike the Statement of Claim. It recognized the validity of the Applicant's request to remove the lis pendens, thereby ordering its removal and ruled that the $350,000 held in trust should be immediately released to the Plaintiffs by Counterclaim.