KANG v MB, 2019 ABQB 246


1.2: Purpose and intention of these rules
3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings
3.67: Close of pleadings
3.68: Court options to deal with significant deficiencies
5.33: Confidentiality and use of information

Case Summary

The Plaintiff, Kang, made several Applications to the Case Management Justice including an Application to amend his Statement of Claim and an Application to engage the Information and Privacy Commissioner of Alberta (the “Privacy Commissioner”). Further, some of the Defendants had applied to strike Kang’s claims against one of the Defendants, Fraser.

The Action stemmed from Kang having been expelled from the University of Alberta (the “University”) and subsequently criminally charged with sexual assault. The charges were later withdrawn and the expulsion overturned. Kang filed the Action against various individuals connected to the University (collectively, the “University Defendants”). Kang also sued several members of the Edmonton Police Service (collectively, the “EPS Defendants”).

The Court first addressed Kang’s proposed amendments to his Statement of Claim. Mandziuk J. identified the Rules governing amendments to pleadings: Rule 3.62, which allows a party to amend a pleading without the Court’s permission before the close of pleadings, and Rule 3.65, which allows a party to amend pleadings after the close of pleadings with the Court’s permission. This Application was made pursuant to Rule 3.65. Mandziuk J. then stated the four exceptions to the general rule that a party may amend pleadings at any time. Amendments should not be granted when: 1) the amendment would cause serious prejudice to the opposing party not compensable in Costs; 2) the amendment requested is “hopeless”; 3) unless permitted by statute, the amendment seeks to add a new party or a new cause of action after the expiry of a limitation period; and 4) there is an element of bad faith associated with the failure to plead the amendment in the first instance.

The Court also noted that pleadings close when a Reply to a Statement of Defence is filed or the time for filing a Reply to a Statement of Defence expires, whichever is earlier pursuant to Rule 3.67. Mandziuk J. did not find that any of the four exceptions applied in this case.

The Court then considered an Application by the University Defendants to strike the claims against the Defendant, Fraser, pursuant to Rule 3.68 which the Court confirmed must be read in light of the timeliness and efficiency desired under Rule 1.2. The Application was granted by Mandziuk J. There was no reasonable claim against Fraser personally as any liability would belong to the University.

Finally, the Court addressed Kang’s Application to have the Privacy Commissioner review the University’s collection, use, and disclosure of his personal information. The University Defendants objected on the basis that information disclosed through their Affidavits of Records was subject to the implied undertaking codified by Rule 5.33. The Court ruled that the circumstances were exceptional enough to grant relief from the implied undertaking rule. The same parties and similar issues would be involved in any process conducted by the Privacy Commissioner so there was little chance of prejudice being suffered. Moreover, if the University Defendants did breach Kang’s privacy rights, they would not be shielded by the implied undertaking rule.

Kang’s Applications to amend his pleadings and to engage the Privacy Commissioner were granted, as was the University Defendants’ Application to strike Kang’s claims against the individual Defendant, Fraser.

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