3.68: Court options to deal with significant deficiencies

Case Summary

The Defendants applied to strike the Action pursuant to Rule 3.68, after the Plaintiff was permitted to file an Amended Amended Statement of Claim. The Amended Amended Statement of Claim alleged that the Defendants (Crown counsel and the Minister of Justice) had acted with malice, engaged in intentional torts, and breached the Canadian Charter of Rights and Freedoms (the “Charter”) when they applied to have the Plaintiff, a criminal lawyer, disqualified as counsel in a criminal Trial due to incompetence.

The matter had first come before Master Farrington several months prior in morning Chambers. At that time, the Master had ordered that it be heard as a Special Application, and directed that if the Plaintiff sought to apply to amend the Statement of Claim, he should do so within a certain timeline. The Plaintiff applied to amend that Statement of Claim outside of the timeline, and then filed a further Application to amend the Statement of Claim to a different version the next day. At the Special Application, the Plaintiff was allowed to file his Amended Amended Statement of Claim, and Master Farrington then considered whether it should be struck.

Master Farrington first noted that pursuant to Rule 3.68(3), an application to strike is not based on evidence. Although the Defendants had emphasized that the surrounding circumstances and context of the Action could be considered, the Master was still required to assume that the allegations as pled in the Amended Amended Statement of Claim were true and consider the pleadings from that perspective.

Master Farrington then assessed the two categories of claims in the Amended Amended Statement of Claim. First, there were claims for abuse of process and malice. Second, there were claims that the Defendants had breached s. 7 of the Charter. With respect to malice, Master Farrington noted that the Plaintiff had pleaded the required elements of malice. Although there were issues as to whether or not the Courts were the proper venue for a complaint about counsel’s conduct (as opposed to a complaint to the Law Society of Alberta), “the limits of the various concepts likely require much testing and exploration” and could not be determined at an Application to strike. With respect to the Charter, Master Farrington considered whether the Plaintiff had set out a breach of his right to life, liberty, and security of the person in the Amended Amended Statement of Claim, and found that he had not done so. As such, the Charter aspect of the Amended Amended Statement of Claim was struck. The Application to strike in all other respects was dismissed.

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