MAKIS v MCEWAN , 2023 ABKB 196


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

Case Summary

The Plaintiffs, a doctor and his professional corporation, had commenced a separate Action against Alberta Health Services alleging the mishandling of certain complaints by Alberta Health Services that resulted in the College of Physicians and Surgeons cancelling the Plaintiff’s practice permit (the “AHS Action”).

In this Action, the Plaintiffs sought damages exceeding $22,000,000 for loss of an unpaid academic appointment at the University of Alberta (the “UA Action”). The Defendants applied to strike the UA Action under Rule 3.68 and summarily dismiss it under Rule 7.3. Justice Gill granted the Applications, with Costs to the Applicants.

The Court noted that Rule 7.3(1) allows a party to apply for Summary Judgment on all or part of the claim on the grounds that there is no merit to the claim or part of it. Rules 3.68(1) and (2) allow a party to strike out a claim on several grounds, including that it constitutes an abuse of process or that it discloses no reasonable claim. If a party argues that a claim should be struck because it discloses no reasonable claim, Rule 3.68(3) limits the investigations to the language of the Pleadings, without any reliance on evidence.

In granting the Applicants’ Applications to strike and summarily dismiss the UA Action, Gill J. found that the UA Action was bound to fail. It was an abuse of process and a collateral attack on certain administrative decisions of the University of Alberta, which ought to have been appealed or judicially reviewed. The Court found that the UA Action was statute barred and duplicative of the claims in the AHS Action.

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