The Plaintiff, a chartered accountant, sought relief against a lawyer and her firm (the “Defendants”) for an alleged malicious prosecution arising from advice the Defendant lawyer gave as independent counsel to a discipline tribunal during discipline proceedings against the Plaintiff by the Institute of Chartered Accountants. The Defendants sought to have the Statement of Claim struck pursuant to Rule 3.68. The Application to Strike the Claim was dismissed by a Master but granted on Appeal to a Justice of the Court of Queen’s Bench. The Plaintiff appealed to the Court of Appeal.

The Court of Appeal reviewed the test under Rule 3.68 and noted that to be successful, the Applicant must demonstrate that it is beyond doubt that the Claim will fail, even when the allegations in the Statement of Claim are treated as true. The Court of Appeal held that the Justice did not err in finding that the Statement of Claim should be struck because it did not plead facts which supported the allegation related to the tort of malicious prosecution.

The Court of Appeal dismissed the Appeal.