The Defendant applied to strike portions of the Statement of Claim, pursuant to Rule 3.68, and to dismiss the remaining parts of the Statement of Claim, pursuant to Rule 7.3. 

The Court referred with approval to the Donaldson v Farrell, 2011 ABQB 11, which confirmed that that the Rule 3.68 test for striking out pleadings is, as it was in “old” Rule 129:   

The test [for striking out pleadings] is whether it is plain and obvious or beyond reasonable doubt that the claim cannot succeed. 

As authority for Summary Judgment under Rule 7.3, Hall J. referred to two Court of Appeal decisions relating to “old” Rule 159: Pioneer Exploration Inc (Trustee of) v Euro-Am Pacific Enterprises Ltd, [2003] AJ No 1305, and Tottrup v Clearwater (Municipal District No 99), [2006] AJ No 1532.  These cases stand for the proposition that a Defendant can avoid a Summary Judgment in favour of a Plaintiff by proving that there is no genuine issue for trial, and that such an Application will granted if it is “plain and obvious”, “clear”, or “beyond real doubt” that the Action should be dismissed.  Through reference to Tottrup, Hall J. indicated that the facts alleged (supporting a duty at law) in the pleadings are critical, and must be examined in a Motion to Strike to determine whether a Cause of Action exists.