SM v ALBERTA, 2014 ABQB 376


1.2: Purpose and intention of these rules
2.11: Litigation representative required
2.12: Types of litigation representatives and service of documents
3.68: Court options to deal with significant deficiencies

Case Summary

The Plaintiff, SM, commenced an Action in her own right and as litigation representative for the estate of her deceased son, CM. CM was apprehended by Child and Family Service and placed with two of the Defendants; he was assaulted by one of the Defendants and later died of his injuries. The Plaintiff claimed against the Crown and two individual Defendants in negligence, and alleged that her own involvement with Child and Family Services as a child resulted in her ongoing difficulties and lack of parenting skills. The Defendant Crown sought to strike the entire Amended Statement of Claim or significant parts of it. The Crown argued that it was plain and obvious that the claims had no reasonable prospect of success. The Plaintiff argued that the Court should be slow to strike or limit claims when they relate to important or serious issues of law, and the expense and inconvenience of defending a complex action was not a ground to strike out a pleading. Justice Graesser considered each of the Crowns specific complaints with respect to the Amended Statement of Claim, striking many of the impugned claims.

Justice Graesser considered how the Foundational Rules, specifically Rule 1.2, dovetailed with the request for striking particular causes of action from an Amended Statement of Claim. Graesser J. held that in the circumstances of this claim, it was difficult to see how the Action was served by expanding the number of Defendants and adding an “unnecessary level of complexity to the claims”. Justice Graesser held that the number of Defendants should be narrowed and stated that:

Facilitating the quickest means of resolving the claims at the least expense is not served by preserving claims which, on the present pleadings are hopeless.

The Crown sought to have several portions of the Amended Statement of Claim struck on the basis that they were argument or meaningless facts and allegations. Justice Graesser considered Rule 3.68(2)(c) as the basis for striking irrelevant and embarrassing allegations. His Lordship agreed with the Crown and held that the Amended Statement of Claim should be further amended to remove the allegations which were “embarrassing, irrelevant, legal conclusions and argument”. Justice Graesser concluded that the Rules of Court sought to have parties identify the real issues in dispute quickly and to manage the litigation together within the language of Rule 1.2.

His Lordship observed that the failure to bring a proper claim for any financial loss to CM under the Survival of Actions Act, RSA 2000, c. S-27, by his executor or administrator, had been cured by Rule 2.11(e) which allowed for a litigation representative to be appointed for the estate of a person for whom probate had not yet been completed. Justice Graesser noted that a failure to appoint a litigation representative under Rule 2.12 was likely an irregularity.

View CanLII Details