ABEL v MODI, 2020 ABQB 530


2.6: Representative actions
3.68: Court options to deal with significant deficiencies
4.22: Considerations for security for costs order

Case Summary

The Applicants sought Summary Dismissal and alternatively, Security for Costs, in the Action brought against them. The Statement of Claim alleged that Omniarch Capital Corporation had made misrepresentations and improperly diverted investment funds in relation to over 500 Plaintiffs. However, prior to that Application being heard, the Respondents filed Affidavit evidence after the deadline set out in the parties’ consent Order.

Accordingly, the Applicants applied to strike the impugned Affidavit in its entirety pursuant to Rule 3.68. The Applicants raised several arguments in this respect, including that the late filing constituted an abuse of process, that the Affidavit was irrelevant to Summary Dismissal, and that the Affidavit was primarily comprised of hearsay or otherwise inadmissible evidence and should be ascribed no weight if admitted.

Madam Justice Ho reviewed the Affidavit. The Court struck the first and third sections of the Affidavit because those sections contained information which was readily available to the Respondents prior to the deadline, and thus there was no reasonable excuse for not adhering to that timeline. The Court also struck paragraphs 10 and 11 of the Affidavit pursuant to Rule 3.68(4), as they contained arguments and legal opinions. In striking these paragraphs, Her Ladyship relied on Gauchier v Cunningham, 2012 ABQB 513, which found that a Case Management Judge has discretion to streamline litigation by avoiding cross-examination on “superfluous opinion, conclusion, and legal interpretations.”

The Applicants argued that the second section of the Affidavit containing a settlement agreement with the Alberta Securities Commission (“ASC”) should also be struck due to its privative clause, which stipulated that the facts agreed to therein applied only for the purposes of that regulatory proceeding. Further, the Applicants argued that the settlement agreement was irrelevant to Summary Judgment. However, Her Ladyship found that the settlement agreement was admissible notwithstanding the privative clause. Madam Justice Ho noted that the bar for relevance in Summary Dismissal is low and that the alternative Application for Security for Costs tipped the scales in favour of admitting the evidence, as Rule 4.22 permits the Court to consider matters respecting the merits of the Action, and any other matter it considers appropriate.

Finally, Madam Justice Ho noted that despite there being over 500 Respondents, Counsel had only referred to the Foundational Rules discussing efficient resolution of disputes to argue that it would be inefficient to require Affidavit evidence of each individual. Counsel argued that the other Respondents’ evidence would have been the same as the Affidavits already before the Court. The Court determined that Affidavit evidence was required for each of the 500 Respondents because they had not commenced a Representative Action pursuant to Rule 2.6 nor had they sought certification under the Class Proceedings Act, SA c C-16.5.

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