The Appellant sought to appeal two Decisions (the “Appeals”). The first was a procedural Decision by the Case Management Judge that set the stage for the Respondent’s strike Application (“Appeal 2203-0110AC”). The second was a Chambers Judge’s subsequent Order that struck out the Claim (“Appeal 2203-0154AC”). The Appeals were allowed in part.

Appeal 2203-0110AC raised the issue of the Appellant’s right to cross-examine the Respondent. Slatter and Woolley J.J.A., for the Court, commented that Rules 6.7 or 6.8 would have enabled the Appellant’s examination under oath of the Respondent for the purpose of obtaining a transcript for use in an Application. The Appellant only had to issue a notice to the Respondent to attend for that purpose. Absent an abuse of process or a specific rule to the contrary, there would be no objection to examining an opposing party.

Slatter and Woolley J.J.A. continued to note that Rule 6.11 is widely worded and would likely permit the consideration of any relevant and material evidence. This Rule specifically authorized the Respondent to rely on his Affidavit in one of the sanction Appeals.

Rule 13.29(3) enables the Court to take notice of certified copies of its own records, which would include the Originating Applications filed in the sanction Appeals and prior Decisions.

The Case Management Judge granted an Order precluding the Appellant from establishing the admissibility of an expert Affidavit, which had not been tendered in a timely way. Slatter and Woolley J.J.A. noted that although Case Management Judges have a mandate under Rule 4.13 to promote fair and efficient conduct and resolution of dispute, the Respondent’s Applications should not have been scheduled until all the necessary evidence was filed and all pre-Application proceedings were completed.

Slatter and Woolley J.J.A. continued to comment that the test for striking a Claim under Rule 3.68 is well established. If a claim is challenged as not disclosing a reasonable claim under Rule 3.68(2)(b), then under Rule 3.68(3) no evidence is admissible. The pleaded facts are taken as being provable, and the claim is assessed for its legal sufficiency. Challenges under the other subrules in Rule 3.68(2) might be supported by relevant and material evidence.

Slatter and Woolley J.J.A. cited Gay v Alberta (Workers’ Compensation Board), 2023 ABCA 351 for the proposition that there are limits to the principle that on a motion to strike the pleaded facts are taken as being true. Specifically, bald assertions of misconduct will not be accepted as being true without reasonable particulars of the allegations.

Citing PricewaterhouseCoopers Inc v Perpetual Energy Inc, 2021 ABCA 16, Slatter and Woolley J.J.A. held that a relevant factor on a strike Application was whether the pleadings were in proper form. If the Statement of Claim did not plead specifics, a possible remedy was to order particulars, not strike the Claim. However, if particulars would not cure the irregularity, it would be appropriate to strike the Claim without giving an opportunity to amend.