In Chalifoux v Greenough, Justice Clackson clarified
that even when statements or allegations of fact used in pleadings
are "sensational and embarrassing," they may still be
appropriately included. In the decision, the defendants sought to
strike out certain paragraphs of the plaintiff's statement of
claim, on the basis that the paragraphs were "frivolous,
irrelevant, embarrassing, sensational, speculative, vague and
conclusory." Clackson J. emphasized that as the defendants
brought the application to strike the paragraphs, they had the onus
of showing that each and every paragraph violated Rule 3.68 of the Alberta Rules of
Rule 3.68 provides:
(1) If the circumstances warrant and a condition under subrule
(2) applies, the Court may order one or more of the following:
(a) that all or any part of a claim
or defence be struck out;
(b) that a commencement document or
pleading be amended or set aside;
(c) that judgment or an order be
(d) that an action, an application or
a proceeding be stayed.
(2) The conditions for the order are one or more of the
(a) the Court has no
(b) a commencement document or
pleading discloses no reasonable claim or defence to a claim;
(c) a commencement document or
pleading is frivolous, irrelevant or improper;
(d) a commencement document or
pleading constitutes an abuse of process;
(e) an irregularity in a commencement
document or pleading is so prejudicial to the claim that it is
sufficient to defeat the claim.
Clackson J. found that the embarrassing and sensational
paragraphs represented allegations of fact that supported the
plaintiff's claim: "the pleading of specific instances of
alleged impropriety is not only proper, but necessary to the
Plaintiff's claim." As such, the defendant failed to show
that the statements fell under one of the conditions outlined in
Although Clackson J. concluded that it was proper, albeit
necessary to include the embarrassing allegations, the Court did
find that the statement of claim was too vague as to the cause of
action, and which of the 48 defendants were responsible for each of
the alleged transgressions. The vagueness of the statement of claim
was found to violate section 3.68(c) of the Rules and the plaintiff
was therefore directed to amend the statement of claim as to cure
the ambiguities. The application to strike out the arguably
embarrassing provisions was denied.
The Take-home Message
This case serves to remind defendants that when they are served
with a statement of claim which includes inflammatory accusations,
the claims are nonetheless properly placed in the pleading if they
serve to support the plaintiff's claim and do not violate other
provisions of Rule 3.68. The Alberta Rules of Court cannot
be used to strike such paragraphs insofar as they link a defendant
to the plaintiff's cause of action.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Alberta Court of Appeal provided useful guidance on the application of the organizing principle of good faith in contractual performance, established by the Supreme Court of Canada in its landmark decision Bhasin v Hrynew.
In the blink of an eye, your life can change forever. Car accidents can happen so quickly that in the immediate aftermath, your mind may be racing as you attempt to process what just happened and what happens next.
Recently in Alberta, there have been a number of cases where a municipality has been sued in a civil action concerning a development while there is an ongoing subdivision application being considered by the municipality.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).