The Plaintiff commenced a civil action against her spouse and mother-in-law for civil conspiracy, harassment, intentional infliction of mental suffering, abuse of process, contempt of court, and perjury (the “Civil Action”). The Applicant brought an Application to strike the Civil Action under Rule 3.68(2)(b-d). In the alternative, the Applicants sought an order consolidating the Civil Action with a contentious divorce proceeding between the parties (the “Family Action”) pursuant to Rule 3.72 or, in the further alternative, directing common discovery and case management for the two actions and that they be tried consecutively.

The Court considered Rule 3.68, citing the relevant legal principles as summarized by Justice Henderson in Ruby v Mills, 2019 ABQB 451 at paragraphs 33 to 36. The Court first considered whether the Plaintiff could pursue a tort of civil conspiracy, noting that Alberta's case law on this issue remains unsettled. However, the Court stressed that rejecting a claim in civil conspiracy in the family law context could enable alleged co-conspirators to act wrongfully without repercussions. Justice Brookes found that the Civil Claim sufficiently addressed the four essential elements of conspiracy, linking the Defendants' actions to their intended outcome and providing enough detail to inform the Defendants of their potential liability. The Court struck two paragraphs from the Civil Claim which did not further the conspiracy claim.

The Court then assessed the tort of harassment, concluding that even if the alleged facts were true, the behavior did not rise to the level of tortious harassment. While any harassment is unacceptable, the conduct did not significantly undermine the Plaintiff’s dignity, nor would it cause a reasonable person to fear for their safety or lead to emotional distress beyond what is typical in a contentious marital separation. As a result, the Court dismissed paragraphs 18-25 related to tortious harassment for failing to establish a valid cause of action.

The Court further considered the tort of intentional infliction of mental suffering, noting that a plaintiff must show conduct that is (a) flagrant and outrageous, (b) calculated to harm, and (c) which results in visible and provable illness. The Court struck paragraphs 26 and 27 of the Civil Claim, finding the facts did not meet the required standard and noting the overlap between tort and family law. The Court also reviewed claims of abuse of process, contempt of court, and perjury, dismissing all three on the grounds that it had no reasonable prospect of success.

Considering abuse of process, Justice Brooks indicated that since the civil conspiracy claim was still active, she could not determine that the remaining claim showed typical abuse of process requirements, opting not to strike the Civil Claim.

Justice Brookes also assessed the Applicants’ position regarding consolidation under Rule 3.72. The Court noted that the Civil Claim and Family Claim involve common questions of law and fact. The Court emphasized that although the Family Action had advanced further, it was not significantly ahead, and much evidence relevant to the Civil Claim had likely been presented in the Family Action. As a result, the Court ordered that both claims proceed together, with common discovery and case management, to be tried together, either concurrently or consecutively, as the Trial Judge sees fit.