FIRST CALGARY SAVINGS & CREDIT UNION LTD v PERERA SHAWNEE LTD, 2011 ABQB 26
KENT J
3.68: Court options to deal with significant deficiencies
Case Summary
This case dealt with an Application under Rule 3.68 to strike a Counterclaim. Kent J. first noted that the Parties agreed that the test for striking such a pleading is an onerous one. Her Ladyship then stated the law that applies to this issue: the Court must find that it is plain and obvious that the Plaintiff’s claim discloses no reasonable cause of action in law. This determination, as stated in 3.68(3), is made without Affidavit evidence, which means the Court must assume that the allegations and facts in the Counterclaim are true. Kent J. noted the tension that exists in determining whether it is plain and obvious that no cause of action exists. On the one hand, the Court must give a liberal interpretation to the pleadings because striking them brings an end to the Action; on the other, the Court must apply the Rule as intended so that, if on the alleged facts there is no cause of action, the claim should be struck to avoid needless litigation.
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