The parties each brought a preliminary Application in the context of proceedings regarding the validity of Public Health Orders made by the Chief Medical Officer of Health. The Applicants applied to amend their Originating Application pursuant to Rule 3.65 to add claims for additional declaratory relief. The Respondents applied to strike portions of the Originating Application as disclosing no reasonable claim pursuant to Rule 3.68.

The Court began its analysis by discussing the law in relation to striking all or part of a pleading pursuant to Rule 3.68. Justice Kirker stated that a claim may be struck if it has no reasonable prospect of success and cited Clark v Hunka, 2017 ABCA 346 for the proposition that it is the Respondent’s burden to prove this beyond a reasonable doubt. Justice Kirker also cited PricewaterhouseCoopers Inc. v Perpetual Energy Inc., 2021 ABCA 16 for the analysis that the Court must undertake: the facts as pled are assumed to be true; the claim will be read generously and will only be struck if it is plain and obvious that the pleading discloses no reasonable cause of action; and a claim will not be struck merely because it is novel, nor will it be allowed to proceed merely because it is novel.

With respect to the Applicants’ Application to amend the Originating Application, the Court set out the general rule that any pleading can be amended, no matter how careless or late, unless an established exception to the rule applies. Justice Kirker cited AARC Society v Canadian Broadcasting Corporation, 2019 ABCA 125 for the three established exceptions, namely: (1) if an amendment would cause the non-moving party significant prejudice not compensable in Costs; (2) if the amendment seeks to advance a hopeless claim; and (3) if the amendment is a product of bad faith. In this case, the Respondents opposed the amendments on the basis that they were hopeless.

Given that the above analyses both asked the Court to consider the merits of the claims (being struck or being added, respectively), Justice Kirker surveyed the law in relation to each impugned claim. Her Ladyship dismissed the Applicants’ amendment Application, except insofar as it pertained to certain limited amendments, and that the Respondents’ Application to strike was granted in part.