ERNST v ENCANA CORPORATION, 2014 ABQB 672
1.2: Purpose and intention of these rules
3.68: Court options to deal with significant deficiencies
7.2: Application for judgment
7.3: Summary Judgment (Application and decision)
10.33: Court considerations in making costs award
SCHEDULE C: Tariff of Recoverable Fees
The Plaintiff (“Ernst”) brought a claim against EnCana Corporation (“EnCana”) for contamination of her well water, and against the Energy Resources Conservation Board (“ERCB”) and Her Majesty the Queen in Right of Alberta (“Alberta”) for failing to properly investigate and remediate the contamination. The claims against the ERCB were dismissed. Alberta then applied to strike all allegations in the Statement of Claim against it for failing to disclose a reasonable cause of action, or alternatively, or for Summary Judgment dismissing the Action against it for having no merit.
Ernst argued that Alberta’s Application to strike constituted an abuse of process as it was the second Application brought by Alberta to strike portions of the Claim and the third time Alberta had challenged the pleadings. In this Application, Alberta sought to strike the entire Claim pursuant to Rule 3.68(2)(b). The prior Application was brought pursuant to different subsections, namely Rule 3.68(2)(c) and (d), and sought to strike only certain parts of the Claim. Chief Justice Wittmann stated that it would be most convenient to bring all attacks on a pleading at the same time, and the failure to do so may result in Costs, but held that the second Application to strike the Claim did not constitute an abuse of process.
Alberta submitted that one of the purposes of Rule 1.2 is to ensure that a Defendant is not subject to unnecessary litigation where there is a process which could resolve a claim, such as an Application to strike under Rule 3.68. Alberta argued that the Claim should be struck as it owed no private duty of care, and further, that Alberta was statutorily immune to liability in these circumstances. Wittmann C.J. noted that the test in Alberta for striking a Claim is now whether there is any reasonable prospect that the Claim will succeed, while reading the Claim generously in order to permit novel claims to proceed. Chief Justice Wittmann held that, while a private duty of care owed by Alberta may be a novel claim, there was a reasonable prospect that Ernst would succeed in the circumstances. Further, the immunity clauses relied on by Alberta apply to individuals acting pursuant to the legislation, such as employees, but do not apply to the Alberta government as a whole. Accordingly, the Claim against Alberta was not struck.
Chief Justice Wittmann went on to consider the alternative Summary Judgment Application. Alberta relied on Rule 7.2(a), which permits the Court to proceed with the Application prior to the Defendant filing a Statement of Defence, and Rule 7.3(1)(b) to argue that there was no merit to the Claim. The Court considered first whether Alberta had fulfilled the evidentiary requirements for Summary Judgment under Rule 7.3(2), as it had not filed Affidavit evidence. Wittmann C.J. held that Alberta could rely on other evidence as an alternative to an Affidavit, such as admissions in a pleading, but there was an absence of other evidence in the proceedings. On this basis, the Summary Judgment Application failed. In any event, Wittmann C.J. held that Alberta had not satisfied the test for Summary Judgment. Accordingly, the Summary Judgment Application was dismissed.
When determining costs, the Court considered Rules 10.33(1)(a) and 10.33(2)(a): the degree of success of each party, and the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the Action. As Ernst was wholly successful in responding to the Application, and Alberta could have raised these arguments as part of their first Application to strike portions of the Claim, Chief Justice Wittmann ordered Costs at triple the applicable column in Schedule C.View CanLII Details