2.11: Litigation representative required
3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiffs (“TA” and her children) filed a Statement of Claim against numerous parties after the children were apprehended by Edmonton Children’s Services. The Claim made “broad assertions” and sought “broad remedies” relating to child welfare policies involving indigenous children. The Defendants applied to strike the Statement of Claim pursuant to Rule 3.68 as an abusive collateral attack on child protection proceedings which were still underway, and because it disclosed no cause of action. Two of the Defendants, who were accused of negligence and defamation relating to their findings in a psychological report, also applied for Summary Dismissal of the Action against them.

First, Devlin J. noted that TA brought the Action in her own name and in the names of her six minor children, but that she was never appointed as their litigation representative as required by Rule 2.11. Devlin J. dismissed the Action as it related to the children, without prejudice to it being brought in accordance with the Rules at a future time.

Next, Devlin J. reviewed Rule 3.68. His Lordship noted that the orders complained of in the child protection proceedings were not appealed, and that attempting to relitigate a matter already determined is an abuse of process. Further, Devlin J. determined that the wrongs complained of by the Plaintiff did not create causes of action against the Defendants, and that the remedies she sought were mostly beyond the jurisdiction of the Court. As such, the Statement of Claim was struck in its entirety, except for the defamation claim respecting the psychological report.

Devlin J. then considered the Summary Dismissal Application, and noted that Rule 7.3(b) allows a Defendant to seek Summary Dismissal where there is no merit to all or part of a claim. His Lordship reviewed the framework for determining whether a claim is suitable for Summary Dismissal from Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49, and held that Summary Dismissal was appropriate in the circumstances. The Applicants had filed an expert report demonstrating that they had met the standard of care, along with evidence that the report was created in a situation of qualified privilege, which provided a full defence to the defamation claim. TA had not filed any evidence in response. As such, the facts could be proven on a balance of probabilities, and there were no genuine issues requiring a Trial.

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