The Plaintiff in this Action commenced multiple Actions against the same Defendant. In 2018, the Alberta Court of King’s Bench granted a Consent Order dismissing the Plaintiff’s claim against the Defendant (the “Old Action”). In 2020, the Plaintiffs filed a new Statement of Claim against the Defendant (the “New Action”). This Decision dealt with an Application by the Defendant to strike the New Action, pursuant to Rule 3.68(2), or alternatively to summarily dismiss the New Action, pursuant to Rule 7.3. The Plaintiffs brought a Cross-Application for Summary Judgment, alleging that the Defendants had no defence.

In addressing both Applications, the Court acknowledged that the question before it was whether, based on the record, it could resolve the dispute fairly on a summary basis in favour of either the Plaintiff or the Defendant. Justice Price conducted a review of the extensive record. There was little argument by the Defendant in its Brief regarding Rule 3.68(2)(e), other than a brief mention that the Plaintiff’s claim relied on events that took place more than ten years prior and that it repeated allegations that were dismissed by consent. The Plaintiff’s Brief spoke to this issue in greater detail, alleging that they entered the Consent Dismissal based on fraudulent Affidavit evidence filed in the Old Action by the Defendant. The Court agreed that a Consent Judgment could be set aside if it was obtained by fraud. Although it was not clear if the Defendant sought Summary Dismissal based on Rule 3.68(2)(e), the Court found that it would not be appropriate to dismiss its claim under this subsection of the Rule because it did not find a procedural irregularity.

The Court found that the alleged fraudulent Affidavit evidence filed in the Old Action was given in error and the affiants were simply mistaken, but that it was not ipso facto fraudulent. Therefore, the Court declined to set aside the Consent Dismissal. Despite finding there was no fraud, the Court did not find it appropriate to strike the New Action pursuant to Rule 3.68 that it was hopeless or an abuse of process because contrary to Rule 3.68(3), it was necessary to review and consider a variety of evidence contained in the record to determine whether the Defendants committed fraud in the Old Action. Therefore, striking the New Action under Rule 3.68 would be in contravention of Rule 3.68(3).

The Court found, however, that the New Action was filed after the expiration of the 10-year limitation period. Given that the Court determined that there was no fraud and that the limitation period expired, the Court found that the Defendant established there was no merit to the Plaintiff’s Claims in the New Action. Consequently, the Court granted the Defendant’s Application for Summary Dismissal pursuant to Rule 7.3. The Plaintiff’s Counter-Application for Summary Judgment was dismissed.