KOSTIC v CIBC TRUST CORPORATION, 2026 ABKB 623

The Plaintiff commenced an Action against the Defendant, CIBC Trust Corporation (“CIBC Trust”), alleging inducement of breach of contract and interference with contractual relations and economic interests. The Plaintiff filed the Action while a request for permission to bring the same claim remained undecided, and despite an earlier Order prohibiting new Actions among the parties without leave. CIBC Trust applied to strike the Action pursuant to Rules 3.68(1) and 3.68(2) as an abuse of process. Alternatively, CIBC Trust sought to dismiss the Action for delay. The Plaintiff cross-applied to amend the Statement of Claim.

Marion J. explained that 3.68(2)(d) is flexible and protects against misuse of Court procedure, including re-litigation, duplicative proceedings, failure to follow Court Orders, and collateral attacks on final decisions.

The Court found several related abuses. For example, the Plaintiff filed the Action without the leave required by an earlier Order, and duplicated the fiat processes the Plaintiff had already commenced. The Plaintiff then maintained the Action after the Court refused permission to bring the claim and the Court of Appeal upheld that result. The Action’s dormancy did not cure the abuse. On either explanation for the filing, the Action either improperly preserved a claim after leave was denied or created a duplicative process designed to avoid the Court’s directions.

CIBC Trust also relied on Rule 3.68(2)(b), which permits the Court to strike a pleading that discloses no reasonable claim. On that branch of Rule 3.68, the Court applied the “plain and obvious” test, assumed properly pleaded facts to be true, and considered no evidence. Although some allegations appeared vulnerable to the ultimate limitation period, the Statement of Claim alleged conduct that occurred within ten years of filing. The Court therefore would not have struck the entire Action pursuant to Rule 3.68(2)(b) if its conclusion that the claim was an abuse of process was wrong.

Justice Marion also considered whether to grant leave nunc pro tunc. Rule 9.6(b), together with the Court’s inherent jurisdiction, permits an Order to take effect before pronouncement. The remedy is extraordinary and must be used sparingly. The Court refused relief because it could prejudice CIBC Trust’s limitation defences and retroactive relief would increase delay and costs rather than facilitate access to justice.

The Court rejected the argument that CIBC Trust could not seek striking before pleadings closed. Rule 3.68 does not require pleadings to be closed. The assigned Case Management Justice had granted CIBC Trust permission to bring the amalgamated Application. The Court also relied on Rule 4.14(2), pursuant to which the Case Management Justice must hear every application in a managed action unless otherwise directed.

Because the Court struck the Action, it did not decide the delay Application and dismissed the Amendment Application as moot. The Court nevertheless observed that, had the Action survived, the Plaintiff could have amended the Statement of Claim as of right pursuant to Rule 3.62(1)(a) because no Defence had been filed and pleadings had not closed under Rule 3.67. CIBC Trust’s recourse would then have been to apply under Rule 3.64 to disallow or strike the amended pleading.

The Court granted the Strike/Dismissal Application only to the extent of striking the Action as an abuse of process. It dismissed the Amendment Application and reserved costs.