3.68: Court options to deal with significant deficiencies
6.14: Appeal from master’s judgment or order

Case Summary

This was an Appeal from a Master’s Decision pursuant to Rule 6.14. The question on Appeal was whether the Master had erred in refusing to strike out the Statement of Claim pursuant to Rule 3.68 in light of its failure to disclose a reasonable claim.

The underlying facts concerned alleged serious errors on the part of Calgary Police Service (“CPS”) in its prosecution of a sexual assault case, which ultimately led to the case being dropped against the accused. The Plaintiff claimed against both the accused and CPS in tort. Relying on an established body of cases limiting complainants’ capacity to claim against police for negligent case management, CPS applied to strike the Statement of Claim pursuant to Rule 3.68. Upon noting the evolving quality of jurisprudence in this area, as well as important factual distinctions in the Plaintiff’s case, the Master dismissed the Application.

On Appeal to the Court of Queen’s Bench, the Court explained that the Appeal was to be de novo. However, upon fresh consideration, the Court agreed with the Master’s assessment. In so doing, the Court noted the novelty of the Plaintiff’s case, as well as Supreme Court of Canada’s guidance that Courts should adopt a generous approach and “err on the side of permitting a novel but arguable claim to proceed to trial”. Moreover, the Court concluded that the principles protecting police investigative discretion from private law obligations to complainants did not preclude finding a duty of care in light of the particular circumstances of the case and, as such, the claim was not bound to fail. The Appeal was dismissed.

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