3.31: Statement of defence
3.68: Court options to deal with significant deficiencies
7.3: Summary Judgment (Application and decision)
9.2: Preparation of judgments and orders
9.3: Dispute over contents of judgment or order

Case Summary

The Appellant appealed an Applications Judge’s Decision (the “Decision”) to strike the Appellant’s Statement of Claim against the Respondent lawyer, who represented a Party opposite the Appellant in a civil claim. The Court dismissed the Appellant’s Appeal.

The Appellant argued that the Decision erred in not allowing her to amend her Statement of Claim under Rule 3.68 and that the Respondent owed her a duty of care under the Consumer Protection Act, RSA 2000, c C-26.3 (the “Act”). However, the Appellant did not suggest any proposed amendments and the Court concluded that there was no legal basis to include the Respondent in any cause of action under the Act.

The Appellant also argued that she had a claim against the Respondent in relation to an Order that Justice Hollins had signed without the Appellant’s endorsement. The Court noted that Rule 9.2(2)(a) required the Respondent to prepare a draft Order and serve it on the Appellant within 10 days after the Order was pronounced. The Court found that the Respondent followed Rule 9.2(2)(a) but the Appellant refused to approve the Order and provided no particulars for her objection. The Appellant also did not apply to the Court to resolve a dispute about the contents of the Order under Rule 9.3. The Court determined that the Appellant had no cause of action against the Respondent in relation to the Order.

The Appellant also argued that the Respondent’s Application under Rules 3.68 and 7.3 should have been dismissed for various technical reasons including that: (1) the Application was mislabelled as being on a Form 11 (the form used for Statements of Defence) rather than a Form 27 (the form used for Applications); (2) as a result of the Application being on a Form 11, the Rules of service for a Statement of Defence under Rule 3.31 apply and were breached; (3) the Respondent should have filed two separate Applications, one to strike Pleadings under Rule 3.68 and another for Summary Dismissal under Rule 7.3; (4) the Respondent should not have been permitted to file Affidavit evidence because his Application was under Rule 3.68, which does not permit the filing of evidence; and (5) the Respondent’s Application improperly referred to Rule 7.3(1)(c), which applies when the only real issue is the amount to be awarded.

The Court determined that there was no basis to dismiss the Respondent’s Application for any alleged technical breaches of the Rules.

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