ALBERTA HEALTH SERVICES v MCDONALD

The Appellants sued for damages said to flow from Alberta Health Services’ (“AHS”) pandemic enforcement that temporarily closed their fitness facility. The Appellants also brought an application to add the Crown as a third-party in their landlord’s Action for unpaid rent against them (the “Rent Action”).  AHS and the Crown moved to strike under Rule 3.68 for failure to disclose a reasonable cause of action, or in the alternative, for Summary Dismissal under Rule 7.3(1)(b) on the basis that there was insufficient evidence.

The Chambers Judge struck the claim under Rule 3.68(2)(b) for failing to disclose a reasonable cause of action and, alternatively, held the record permitted summary disposition because there was no genuine issue for trial. He also refused the third-party addition in the Rent Action under Rule 3.45(c)(i)–(ii), finding it was more than six months late.

The Appellants narrowed their Appeal to whether the Chambers Judge erred finding there was no bad faith on the part of AHS in summarily dismissing the claim against AHS pursuant to Rule 7.3(1)(b). Procedurally, the Court exercised its discretion under Rule 2.23(4) to grant non-lawyer Mr. McDonald a limited audience to speak on behalf of the corporate Appellant, Ape Parkour Inc.

The Court found no reviewable error and confirmed that AHS and its Executive Officers are statutorily insulated from liability for actions taken in good faith. The Court further held that the Appellants’ claim amounted to an impermissible collateral attack on the Closure Order, which should have been challenged through the statutory appeal process under s 5 of the Public Health Act, RSA 2000, c P-37.

The Appeal was dismissed.