LISCHUK v K-JAY ELECTRIC LTD, 2021 ABQB 280
3.65: Permission of Court to amendment before or after close of pleadings
3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)
The Plaintiffs appealed a ruling by Master Schlosser (the “Ruling”) which had summarily dismissed a portion of the Plaintiffs’ Amended Statement of Claim (the “Added Claims”). The Defendant also appealed the Ruling not to dismiss all of the Plaintiffs’ Added Claims. As a preliminary issue, the Plaintiffs argued that by granting the amendments, the Court had already ruled that the basis for the amendments was proper.
In dismissing both Appeals and upholding the Master’s Decision, the Court first reviewed Rule 3.65, confirming that it gives the Court jurisdiction to allow amendments after pleadings have closed. The Court accepted the Plaintiffs’ argument that the Master’s Decision to allow the Added Claims meant that the Master did not find the Added Claims “hopeless”. The Court noted that examples of “hopeless” amendments include claims that do not disclose a cause of action, claims that have less than a modest degree of evidence in support, and claims that would be struck out under Rule 3.68. Claims that could be struck out pursuant to Rule 3.68 include claims where the Court has no jurisdiction and where the pleading discloses no reasonable claim or defence to a claim. On this point, the Court concluded that by allowing the Added Claims, the Master had to have found that they could not be struck under Rule 3.68.
The Court went on, however, to distinguish between the test for striking claims and summarily dismissing them. The Court stated that although an Application to strike pleadings and an Application for Summary Dismissal both serve the same broader purpose of weeding out unmeritorious claims at an early stage, they are not equivalent Applications, and the analyses underlying the two remedies is significantly different. The Court underscored that an Application to amend pleadings is a procedural step and a relatively easy bar meet. An Application to amend is not an adjudication on the merits of the amendments sought.
By contrast, the test for Summary Dismissal pursuant to Rule 7.3 requires the Court to conduct a review of the entirety of the claim. While no evidence may be adduced for an Application to strike, a robust evidentiary record is required in a Summary Dismissal Application. The Court emphasized that the Defendant’s Summary Dismissal Application was not a collateral attack on the decision by the Master to permit the Added Claims, and upheld the Master’s Decision to summarily dismiss a portion of the Plaintiffs’ claim.
The Court determined that the Master’s Decision was correct and dismissed both of the Appeals.View CanLII Details