IRWIN v BUOTE, 2016 ABQB 530

macklin j

3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiff successfully appealed the suspension of his veterinary license, and commenced a Claim in negligence and bad faith against the Defendants for damages related to the suspension. The Defendants applied to Summarily Dismiss the Plaintiff’s Claim, or Strike out the Statement of Claim pursuant to Rule 3.68 on the basis that the majority of the claims were barred by the express wording to the Veterinary Profession Act, RSA 2000, c V-2 (“VPA”), and that any allegations in the Statement of Claim not barred by the VPA were inadequate to support those claims.

Macklin J. noted that no evidence may be submitted on an Application to Strike a Claim or portions of a Claim pursuant to Rule 3.68. His Lordship stated that, pursuant to Rule 3.68(2)(b) the Court may order that all or any part of a Claim be struck out if the commencement document or pleading discloses no reasonable claim. Claims may only be struck under Rule 3.68(2)(b) if it is plain and obvious that the pleading discloses no real cause of action. The facts pleaded are deemed to be true for the purposes of the Application.

Macklin J. reviewed the VPA and determined that it was clear that the claims advanced by the Plaintiff for negligence were barred by section 65.1. It was therefore plain and obvious that the Statement of Claim disclosed no reasonable claim in negligence and that these claims must be struck out pursuant to Rule 3.68(1) and 3.68(2)(b). This left only the allegations of bad faith by the Plaintiff. Justice Macklin held that the allegations of bad faith should also be struck out as the Pleading was inadequate. Macklin J. considered Summary Judgment as an alternative to striking the allegations. His Lordship noted that Summary Judgment may be granted when there is no genuine issue requiring a Trial. Justice Macklin concluded that, even if striking the bad faith allegations pursuant to Rule 3.68 was incorrect, Summary Dismissal of those claims was warranted.

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