master schlosser

1.4: Procedural orders
3.68: Court options to deal with significant deficiencies

Case Summary

The Plaintiffs commenced an Action in defamation against five Defendants (the “Alberta Action”). Four of the five Defendants applied to have the Alberta Action struck pursuant to Rule 3.68 as an abuse of process or, alternatively stayed pursuant to Rule 1.4(2)(h) as the basis that Alberta was not the convenient forum.

The Defendants argued that the Claim was an abuse of process because there was ongoing litigation between some of the parties in California (the “California Action”). Master Schlosser found that two of the Defendants were not parties to the California Action and, as a result, had no standing to ask that the Alberta Action be stayed, and dismissed their Application under Rule 3.68. To decide the Rule 3.68 Application made by the Defendants who were parties to the California Action, Master Schlosser reviewed the pleadings in the California Action. Master Schlosser noted that the California Action was for fraud, breach of contract, and similar causes of action unrelated to defamation. While the California Action and the Alberta Action arose from the same relationships and events, the two Actions were, for the most part, based on different causes of action. For this reason, Master Schlosser dismissed the Application to strike the Alberta Action, subject to the Plaintiffs’ voluntarily discontinuing the portions of the Alberta Action which overlapped the California Action.

Master Schlosser considered Rule 1.4(2)(h) which governs Applications to challenge jurisdiction and Stays based on forum non conveniens. Master Schlosser noted that there is no parallel to former Rule 27, and a Defendant seeking immediately to challenge jurisdiction was unlikely to attorn by doing so, but that the common law made attornment “a risky business”. Master Schlosser considered the factors set out in Breeden v Black, 2012 SCC 19 (CanLII), and found that the Plaintiffs resided and carry on business in Alberta and that their reputations were chiefly domiciled in Alberta. Additionally, the corporate Defendant maintained an office in Edmonton and the personal Defendants conducted business in Alberta. Master Schlosser was not persuaded that California was clearly the more appropriate jurisdiction, and thus dismissed the Application to stay the Alberta Action under Rule 1.4.

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