WONG v LEUNG, 2011 ABQB 688


1.6: Changes to these rules
15.2: New rules apply to existing proceedings

Case Summary

The Applicants sought to strike the Plaintiff’s Statement of Claim on the grounds that it disclosed no reasonable cause of action and was scandalous, frivolous, or vexatious, or otherwise constituted an abuse of process.

A preliminary issue arose regarding whether new Rule 3.68 or former Rule 129 ought to apply, given that the Application was filed prior to the new Rules coming into force, but was heard after they had come into force. After reviewing Rule 15.12, Master Smart determined that it was clear that new Rule 3.68 applied. Further, Master Smart found that the circumstances did not warrant exercising the discretionary power under Rule 15.6, since there was no injustice here.

With respect to the test for striking out pleadings, the Court reviewed Rule 3.68, and cited Tottrup v Alberta (Minister of Environment), 2000 ABCA 121 for the propositions that:

1.) the Court must assume that the allegations of fact made by the plaintiff are true. The Court then determines whether those facts disclose a cause of action in law; and

2.) if the alleged facts, examined in light of the existing law, do not disclose a cause of action the claim should be struck.

After reviewing the pleadings in question, Master Smart determined that they did not disclose a reasonable cause of action. Although this would have been sufficient to grant the Application, the Court also looked at whether the proceedings were vexatious; and after reviewing the relevant case law and the impugned Statement of Claim, determined that they were.

In the result, Master Smart allowed the Application and the claim against the Applicants was struck.

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