C.M. v ALBERTA, 2022 ABQB 357


1.3: General authority of the Court to provide remedies
3.15: Originating application for judicial review
3.18: Notice to obtain record of proceedings
3.19: Sending in certified record of proceedings
3.61: Request for particulars

Case Summary

The Applicants commenced an Action by an Originating Application alleging numerous defects in a decision of the Chief Medical Officer of Health, Dr. Deena Hinshaw, changing a requirement that people wear masks in public places (the “Decision”). The Applicants also alleged defects in a declaration by the Minister of Education prohibiting school boards from requiring masks in school (the “Declaration”). The Applicants applied for an Order seeking, in part to rely on an Affidavit sworn by Dr. Hinshaw, which was filed in another Action.

The Respondent argued that the Action could only be limited to the Decision, and that the Court could not provide any relief for the Declaration. The Respondent argued that the Originating Application was for Judicial Review only, and the prayer for relief in the Originating Application did not reference the Declaration made by the Minister.

The Court disagreed. Dunlop J. held that Rule 3.15 does not prohibit applicants for Judicial Review from also including other claims and relief in the same pleading. Dunlop J. also held that Rule 1.3(2) allows the Court to grant a remedy even if it is not formally claimed or sought. Dunlop J. stated that the Respondent could have sought particulars under Rule 3.61 if it was truly uncertain about the scope of the Action.

The Court also found that the Parties had inappropriately modified Forms 8 and 9 of Rules 3.18 and 3.19, respectively. The Applicants attempted to add additional requirements on Form 8, a Notice to Obtain Record of Proceedings (the “Notice”), which must be completed where an applicant seeks an Order to set aside a decision. Dunlop J. held that Rule 3.18(3) allows the Court, not an applicant, to modify what is required for Form 8. The Respondent deleted portions of Form 9, a reply to Form 8, whereby the respondent must send a certified record of proceedings in Form 9 or explain why the Notice cannot be complied with. Dunlop J. stated that the Rules do not authorize parties to unilaterally modify Form 8 or Form 9. The Court ordered Dr. Hinshaw to provide a more complete Record of Proceedings.

The Applicants also sought an Order permitting reliance on an Affidavit sworn by Dr. Hinshaw in another Action, pursuant to Rule 6.11(1)(f). The Court declined to grant the Order. Dunlop J. found that it would not be appropriate to admit the Affidavit for the following reasons: the Affidavit addressed issues that were not the same as in the Action; the Affidavit responded to other Affidavits that were not before the Court; the Affidavit would be incomplete and potentially misleading; the Affidavit included a large volume of irrelevant material; and the Affidavit could open the door to questioning Dr. Hinshaw with the potential to prolong, distract, and frustrate the Action.

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