AL-GHAMDI v ALBERTA, 2017 ABQB 684
1.2: Purpose and intention of these rules
1.4: Procedural orders
2.11: Litigation representative required
3.26: Time for service of statement of claim
3.27: Extension of time for service
3.28: Effect of not serving statement of claim in time
3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)
10.52: Declaration of civil contempt
10.53: Punishment for civil contempt of Court
11.1: Service of original documents and copies
11.16: Service on lawyer
11.17: Service on lawyer of record
11.18: Service on self-represented litigants
11.2: Service not invalid
11.21: Service by electronic method
11.22: Recorded mail service
11.27: Validating service
11.5: Service on individuals
11.7: Service on litigation representatives
13.7: Pleadings: other requirements
The Respondent, Al-Ghamdi commenced more than a dozen Actions against various Defendants, lawyers, and their law firms. The Defendants in three different Actions applied to strike the Claims pursuant to Rule 3.68, summarily dismiss the Claims under Rule 7.3, or sought that no further proceedings could be taken against them under Rule 3.28. One group of Defendants also sought an Order under Rules 10.52 and 10.53 declaring Al-Ghamdi to be in contempt of Court for failing to comply with the Court’s Orders.
Al-Ghamdi applied to adjourn the Applications under Rule 1.4(2)(h) on the basis that the Applicants’ Affidavits were not properly served. Justice Goss found that although one of the Affidavits was minimally delayed, the delay was not material or significant, and dismissed Al-Ghamdi’s Application for an adjournment. Al-Ghamdi also applied to strike certain Affidavits pursuant to Rules 11.18 and 11.21 as he claimed to have not seen the Affidavits sent to him by email. The Court validated service of the Affidavits pursuant to Rule 11.27, as counsel sent the Affidavits to an email address that was frequently used to communicate with Al-Ghamdi.
Justice Goss noted that, under Rule 3.68, the test for striking a Claim is whether “there is a reasonable prospect of success”. An Application under Rule 3.68 requires that the pleadings set out material facts, not bald assertions, while still adhering to the formal requirements of Rules 13.1 through 13.12. Further, Goss J. observed that, usually for the purposes of a Rule 3.68 Application all allegations must generally be taken as proved, this is not the case if the Claim makes bare allegations or cites speculative facts. A commencement document that is frivolous, irrelevant, or improper may also be struck. The concepts of frivolous and vexatious litigation are related. Goss J. held that it is an abuse of process to pursue judicial proceedings without first exhausting administrative options. Parties should not proceed to Court until the administrative process has concluded.
With respect to the Applications for Summary Judgment, Justice Goss noted that Summary Judgment is appropriate where there is no genuine issue requiring a Trial and the Court can make a fair and just determination on the merits. Justice Goss, referring to prior leading authority, summarized the requirements in a Summary Judgment Application as:
• The applicant for summary dismissal will have an unassailable position if its likelihood of success is very high and the respondent’s prospects for success are very low … ;
• Each party must put forth their strongest case, described as a “bet-the-farm” application … ; and
• An applicant for summary dismissal need not have pleaded the argument raised in the application in its statement of defence, and in fact can bring an application to dismiss without having filed defences …
Goss J. also noted that pursuant to Rule 13.7, an applicant must provide particulars when alleging defamation.
Al-Ghamdi argued that should the Court find his Pleadings deficient, he should be granted the opportunity to amend his Amended Statement of Claim pursuant to Rule 3.68(1)(b). Justice Goss held that although Applications to Amend are generally heard before Applications to Strike, in cases where the pleading is fundamentally flawed, the Court may hear the Applications in a different order. Here, Al-Ghamdi was served with several Applications to Strike in December of 2016, yet he did not seek to amend the Amended Statement of Claim until the date of the Defendants’ Applications. Rule 1.2 provides that the Rules are intended to facilitate the quickest means of resolving a claim, and allowing Al-Ghamdi to use the Rules to delay the proceedings would be counter to the purpose of the Rules. In the result, Justice Goss struck out or summarily dismissed many of the claims in Al-Ghamdi’s Actions.
Several Defendants applied for an Order that Al-Ghamdi was not to take any further proceedings under Rule 3.28 because he had not properly served the Defendants with the Statement of Claim. Goss J. noted that Rule 3.28 provides that where a Statement of Claim is not served in time, no further action may be taken against the unserved defendant. Rule 3.26 provides that the time limit for service is one year from the date that the Statement of Claim was filed. Justice Goss observed that the “regime for service under theis a complete code” and referring to the specific Rules relating to service in Part 11, held that Al-Ghamdi had failed to properly effect service. Al-Ghamdi was advised to provide notice or apply for substitutional service but did not do so, and did not seek any extension for the time for service. The Defendants’ Applications under were granted.
Several Defendants applied for a declaration that Al-Ghamdi’s conduct constituted contempt of court under Rule 10.52 due to Al-Ghamdi’s failure to follow a previous Court Order. Al-Ghamdi argued that he was never served with the Order, and thus could not be in contempt. Goss J. held that since the Order resulted from Al-Ghamdi’s own Application, he could not argue that he was not served with the Order. Al-Ghamdi had not only disregarded the Order, but he also appeared ex parte before another Justice in an attempt to enter Judgments based on invalidly obtained Notices of Default, while failing to advise the Court about the prior proceedings and Order. Justice Goss granted the Application for a declaration of contempt, and also struck the Pleadings against those Defendants.View CanLII Details