In a proposed Class Action, the representative Plaintiff sued the Defendant owner and operator of a meat processing facility located in Alberta, claiming that the Defendant’s negligence lead to contamination of meat which caused the Plaintiffs to become seriously ill. The Defendant sued the Canada Food Inspection Agency (“CFIA”) as a third party alleging that the food inspection processes were integrated with the Defendant’s operation. The CFIA applied to have the Defendant’s Third Party Claim struck out pursuant to Rules 3.47(b) and 3.68. Rooke A.C.J. considered whether the Third Party Claim should be struck out on the basis that the Claim did not disclose a cause of action. Rooke A.C.J. considered whether it was plain and obvious that the CFIA had any private law duty to the Plaintiff. His Lordship noted that the specific allegations in the Statement of Defence and the Third Party Claim were deemed to be fact for the purposes of Rule 3.47(b) and 3.68. His Lordship further stated that Rule 3.68 provides parties and the Court with a mechanism to limit or end Actions or Defences which have no possibility of success. The Rule allows a Claim to be struck, amended, to be the subject of Judgment or to be stayed. The threshold test under Rule 3.68(2)(b) is that a pleading must disclose no cause of action. His Lordship noted that Rule 3.68(3) dictates that no evidence is admissible for the purpose of determining whether a Claim should be struck. Rule 3.47(b) extended the application of Rule 3.68 to Third Party Claims.

Rooke A.C.J. stated that the test for a strike application is well established: an action or defence may be struck where it is “plain and obvious, or beyond reasonable doubt that the action cannot succeed”; and, pleadings should be considered in a “broad and liberal manner”. His Lordship stated further that, in a strike Application, the pleadings that are the basis for the allegations are considered to be true with two exceptions: a fact is different from a “bald allegation” and an alleged fact may be rejected when it is absurd or highly implausible. The bar for a strike Application is set high to preserve a potential Action where possible. Pleadings must be read generously, and struck only if deficiencies cannot be corrected with amendments by the Court. In addition, radical defects are a basis to end lawsuits by striking, and Courts are required to err on the side of allowing novel claims to proceed. Using the principles and test for striking under the Rules, His Lordship considered whether it was plain and obvious that the CFIA had a private law duty to the Plaintiff class of meat consumers. Rooke A.C.J. utilized the deemed factual foundation set out by the pleadings, which implied or stated that the CFIA was liable to the Plaintiff Class, to test whether the Defendant’s Third Party Claim was hopeless and could not succeed.

Rooke A.C.J. concluded that it was not plain and obvious that the Defendant would fail as against the CFIA. Instead, there was a small potential for the Third Party Claim to be successful. His Lordship also held that CFIA owed no private law duty to the Plaintiff Class. Rooke A.C.J. also declined to grant a stay of the Third Party Claim against CFIA pending resolution of the Certification Application.