LEE v HACHE, 2018 ABQB 88
7.2: Application for judgment
7.3: Summary Judgment (Application and decision)
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
The Defendant made an Application to strike out the Plaintiff’s Amended Amended Statement of Claim by way of Summary Judgment. The Plaintiff had claimed against the Defendant for negligence, misfeasance in public office and malicious prosecution. The Plaintiff was an inmate in the Bowden Institution, and the Defendant was a nurse working there at the time. Master Smart considered the authorities surrounding Summary Judgment, and cited Rule 7.3(1)(b) which provides that a Court can order Summary Judgment and dismiss one or more claims in the Action where there is no merit to a claim or part of it.
While Master Smart noted that some of the affidavit evidence of the Plaintiff and the Defendant were conflicting, much of the Plaintiff’s evidence consisted of bald allegations and denials, and much of it was irrelevant, incoherent, inadmissible, and carried little weight. Master Smart determined that the Plaintiff’s Claim could be struck pursuant to Rule 7.2 and 7.3, as the Claim had no merit, the Plaintiff had failed to establish that he had suffered any damage arising out of the incident, and the Amended Amended Statement of Claim did not disclose a valid cause of action. The Application for Summary Judgment was granted.
With respect to Costs, Master Smart referred to Rule 10.29(1) which provides that the successful party to an application is presumptively due their costs. The Plaintiff disputed the amount that the Defendant claimed in Costs, but Master Smart determined that the amount of Costs sought by the Defendant were appropriate given that the Court may make a costs award under Rule 10.31 after considering the factors set out in Rule 10.33. Master Smart noted that Rule 10.33 provides that the Court may consider the conduct and character of the parties involved. Master Smart determined that the Plaintiff had not acted in good faith and that his litigation conduct was questionable. Master Smart awarded Schedule C Costs to the Defendant.View CanLII Details