AL-GHAMDI v COLLEGE AND ASSOCIATION OF REGISTERED NURSES OF ALBERTA, 2017 ABQB 685
3.15: Originating application for judicial review
3.22: Evidence on judicial review
3.28: Effect of not serving statement of claim in time
3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings
3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)
Mr. Al-Ghamdi commenced a number of Actions against various parties including the College and Association of Registered Nurses, and the law firms who had represented Al-Ghamdi and the Defendants. The Defendants in four of the Actions applied to strike Al-Ghamdi’s Claims pursuant to Rule 3.68 and to summarily dismiss his Claims pursuant to Rule 7.3.
In Action 1404-00719, Al-Ghamdi sought Judicial Review of the Decision of the Complaint Review Committee of the College and Association of Registered Nurses of Alberta (“CARNA”). CARNA sought to summarily dismiss the Claim against it pursuant to Rule 7.3(1)(b) which allows a party to apply for summary dismissal where there is no merit to a Claim or part of it. Goss J. granted CARNA’s Application, and held that there was no merit to Al-Ghamdi’s Claim that the reasons for CARNA’s Decision was unfair, biased, or that it lacked procedural fairness.
In Action 1504-00592, the Respondent sought Judicial Review of a Decision of one of the Applicants (the College of Physicians and Surgeons). The Applicant argued that the Originating Application for Judicial Review did not name the proper parties and that the proper parties had not been served pursuant to Rule 3.15(3). Goss J. considered Rule 3.15 which provides that, subject to Rule 3.16, an Originating Application for Judicial Review to set aside a decision or act of a person or body must be filed and served within six months after the date of the decision. Goss J. reviewed the authorities that considered Rule 3.15 and the previous Rule 753.11, and determined that regardless of what time period the Respondent was calculating from, the Respondent was out of time to seek Judicial Review of the decision. Goss J. also determined that the Application was not properly served on the persons specified under Rule 3.15(3), which stipulates who is required to be served in a Judicial review Application.
Justice Goss noted that in Action 1504-00215, Al-Ghamdi sought what appeared to be Judicial Review of the Decision of the Canadian Medical Protective Association (“CMPA”). CMPA applied for Summary Dismissal of the Originating Application arguing that Decisions by the CMPA are not subject to Judicial Review. In Action 1504-00687, Al-Ghamdi claimed against the former managing director of CMPA, individual lawyers and law firms alleging negligence, breach of trust and fiduciary duties, conspiracy and making false statements. Each of the Defendants applied to strike the Claims or for Summary Dismissal.
With respect to CPMA’s Application for Summary Dismissal and Striking Al-Ghamdi’s Judicial Review Application in both Actions 1504-00687 and 1504-00215, Goss J. granted both Applications determining that, pursuant to Rule 7.3 there was no genuine issue for Trial, and further, pursuant to Rule 3.68 the Actions should be struck as the CMPA Decision was not subject to Judicial Review. Al-Ghamdi sought to rely on new affidavit evidence in the two Judicial Review Applications. Goss J. referred to Rule 3.22 which sets out what evidence the Court may consider on Judicial Review. The Rule provides that a reviewing Court can only consider a certified copy of the record of proceedings of the person or body that is the subject of the Application, if questioning was permitted under Rule 3.21, a transcript of that questioning, and anything permitted by any other Rule or enactment, and any other evidence permitted by the Court. Justice Goss noted that while the authorities state that other documents may sometimes be admitted, this should only be done so in limited situations. Al-Ghamdi’s Application to adduce new affidavit evidence was dismissed.
With respect to the Application by the two Defendant law firms to strike Al-Ghamdi’s claims against them pursuant to Rule 3.68, Goss J. held that the Pleadings did not assert any reasonable cause of action against the law firms. Goss J. noted that in an Application under Rule 3.68(2)(b) no evidence is admissible. Her Ladyship concluded that Al-Ghamdi had failed to particularize his allegations against the Defendant law firms in the Pleadings as required. As a result, the Defendant law firms’ Applications to strike were granted.
The individual Defendant, McKall also applied to strike the Respondent’s Claim pursuant to Rule 3.68. Justice Goss held that, unlike a number of the claims made against the other Applicants, this Claim raised a hint of a reasonable claim. Goss J. allowed Al-Ghamdi leave to apply within 30 days to amend the Pleadings, but emphasized that the Court was only granting leave to apply to amend the Pleadings under Rule 3.62 and Rule 3.65, and that the leave was not granted automatically, as the Pleadings had closed. Goss J. stated that if Al-Ghamdi did not apply to amend the Pleadings in the stipulated time frame, the Claims against the Applicant would be struck.
The individual Defendant, Johnson sought an Order under Rule 3.28 that no further action be taken against him as he had not been properly served with the Statement of Claim. Goss J. held that Al-Ghamdi had not served Johnson, set aside the Default Notice and declared that no further action be taken against Johnson because he was not served within one year of the Statement of Claim being filed.View CanLII Details