The Plaintiff realtor brought an Action against the Real Estate Council of Alberta (“RECA”) and a law firm alleging that the Defendants were liable for malicious prosecution as a result of conduct proceedings taken by RECA against the Plaintiff. The Defendants applied to strike the Statement of Claim pursuant to Rule 3.68 on the basis that it disclosed no reasonable claim against them.

The Court dismissed the Application concluding that the Defendants had not established that there was no reasonable prospect that the Plaintiff’s claim would succeed. Specifically, the Court found that, in light of the pleadings, which are presumed to be true under Rule 3.68, it was not clear that RECA’s allegations against the Plaintiff were not rooted in malice.

The Master also declined to exercise discretion under Rule 3.68 to strike parts of the Statement of Claim containing allegations of negligence, while leaving in allegations of malicious prosecution. To do so would be a nearly impossible task given that “the question of what is and what is not malice is sufficiently murky.”