JORDAN v ATTORNEY (JUSTICE AND ATTORNEY GENERAL), 2017 ABQB 293
1.2: Purpose and intention of these rules
3.33: Reply to defence
3.62: Amending pleading
3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)
13.5: Variation of time periods
After he was acquitted of criminal charges, the Plaintiff commenced proceedings against a variety of individuals and government bodies, including the Attorney General of Canada. The Plaintiff initially made a number of allegations against the Defendants, but by the time the within Applications were heard, only the claim for malicious prosecution remained. The Attorney General applied to summarily dismiss the Plaintiff’s Claim pursuant to Rule 7.3 Alternatively, it sought to strike the allegation under Rule 3.68, as constituting an abuse of process. The Plaintiff cross-applied to amend his Amended Amended Statement of Claim.
Master Mason first noted that if an Application for Summary Judgment and an Application to amend Pleadings are heard together, the “general rule” is that the Application to amend is heard first. The Court cited Rule 3.33 as the basis for filing a Reply to a Statement of Defence, but noted that pursuant to Rule 3.33(3), this must be done within 10 days. However, it had been approximately four years since the Attorney General served its Statement of Defence on the Plaintiff. Master Mason considered whether the time period could be extended under Rules 13.5(2) and (3) and noted that the decision to extend time is discretionary, but that certain factors should be considered, including: “the length of the delay; the explanation for the delay; and the relative prejudice to the parties.” If the delay is significant, explanatory evidence is required. Master Mason also noted that the Court should not “act without purpose” in extending a time period.
Master Mason considered Rule 1.2, and opined that the should be used to facilitate the fastest ways to resolve legal claims, identify the true issues in dispute, and encourage Parties to resolve issues amongst themselves. Since the Plaintiff’s Application to amend his Pleadings would not clarify issues or help to resolve the dispute, and due to the almost four year delay, his Application was dismissed.
In considering the Attorney General’s Application to summarily dismiss the Plaintiff’s Claim, the Court considered Rule 7.3 and observed that the decision to dismiss a claim summarily is based on whether there is a meritorious issue that genuinely requires a Trial, or whether the defence is “so compelling … such that it should be determined summarily”. The onus is on the applicant to demonstrate why it is entitled to summary judgment, however, both parties are presumed to have put their “best foot forward”. The standard that must be met is whether the Judge has confidence that the facts can be properly determined and applied to the law.
Master Mason held that the Claim against the Attorney General for malicious prosecution was without merit: the Attorney General was not vicariously liable for the conduct of the Calgary Police Service investigation that the Plaintiff complained about. As such, the Court dismissed the Plaintiff’s Claim. Accordingly, the Court did not consider the Attorney General’s alternative Application to strike the Claim.View CanLII Details