RUBY v MILLS, 2019 ABQB 451
3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)
13.7: Pleadings: other requirements
The Plaintiffs, who had been tenants in a residence owned by the Defendant, brought an Action against the Defendant on various grounds. The Defendant filed an Application to strike out the Amended Statement of Claim pursuant to Rule 3.68, on the basis that i) the Court had no jurisdiction, referencing Rule 3.68(a); ii) all matters within the claim were res judicata; iii) the Amended Statement of Claim disclosed no reasonable claim or defence to a claim, referencing Rule 3.68(b); iv) the Amended Statement of Claim was frivolous, irrelevant, or improper, referencing Rule 3.68(c); and v) the Amended Statement of Claim constituted an abuse of process, referencing Rule 3.68(d).
The Court declined to strike the Plaintiffs’ Amended Statement of Claim for lack of jurisdiction. With respect to the allegedly criminal jurisdiction of the allegations of theft, forgery, fraud, and perjury, the Court found that theft could be interpreted as the tort of conversion, fraud could be interpreted as the tort of fraud, and that forgery and perjury were not pleaded as causes of action. More generally, the significant quantum of damages sought was properly before the Court of Queen’s Bench as a remedy exceeding the jurisdiction of the Residential Tenancy Dispute Resolution Service (“RTDRS”).
With respect to the Defendant’s argument that the claim should be struck as res judicata, the Court also referenced financial jurisdiction. The Defendant had previously applied for and received relief before the RTDRS, and the Order arising from that proceeding had not been appealed by the Plaintiffs. The Court explained that while cause of action estoppel, a branch of the doctrine of res judicata, was primarily unavailable on account of the fact that the Plaintiffs had not previously sought relief before the RTDRS, the relief requested in the Amended Statement of Claim would in any event have been beyond the RTDRS’ jurisdiction to consider.
In reviewing whether the Amended Statement of Claim disclosed a reasonable claim, the Court cited R v Imperial Tobacco Canada Ltd, 2011 SCC 42 (CanLII) for the proposition that a “claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action”. Taking note of this threshold, Justice Henderson was inclined to allow claims for employment loss, unpaid wages, negligence, and conversion to proceed.
The Court went on to strike all other purported causes of action as failing to disclose a reasonable cause of action. With respect to allegations of fraud and defamation, the Court noted that such allegations must be pleaded with particularity pursuant to Rule 13.7. In light of noncompliance with this requirement, as well as the Plaintiffs’ failure to plead facts supporting either the elements of civil fraud or defamation, the allegations of fraud and defamation were struck. While Affidavit evidence was available to support these causes of action, Rule 3.68(3) precluded resort to Affidavit evidence in testing a pleading’s disclosure of a reasonable claim. With respect to the Plaintiffs’ claims of “premeditated negligence causing physical, bodily harm”; “premeditated negligence causing mental, psychological harm”; and “discrimination under oath”, Justice Henderson summarily struck such allegations for failing to amount to causes of actions recognizable in civil proceedings.
Finally, the Court’s analysis turned to consideration of the Amended Statement of Claim as vexatious, which would appropriately attract review of the Amended Statement of Claim as either “frivolous, irrelevant, or improper”, pursuant to Rule 3.68(c), or an “abuse of process”, pursuant to Rule 3.68(d). Justice Henderson observed numerous indicia of vexatious litigation present on the face of the Amended Statement of Claim, and as such, was prepared to strike the Amended Statement of Claim in its entirety pursuant to Rule 3.68(c). This decision was reinforced upon noting that the abuse of process doctrine referenced in Rule 3.68(d) is remarkably flexible, focussed on the integrity of the administration of justice, which favoured striking the whole of the Amended Statement of Claim in this case.
Given the determination that the Amended Statement of Claim be struck in its entirety pursuant to Rule 3.68, the Court held that it was unnecessary to consider the Defendant’s alternative Application for Summary Judgment pursuant to Rule 7.3.View CanLII Details