Stout v. Track,

• Judge: Rowbotham,Sulyma,Wakeling
• Neutral Citation: 2015 ABCA 10
• Citation: 2015 ABCA 10,(2015), 599 A.R. 98,599 AR 98,(2015), 599 AR 98,599 A.R. 98
• Date: 05 February 2015
• Court: Court of Appeal (Alberta)

Stout v. Track (2015), 599 A.R. 98; 643 W.A.C. 98 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. FE.039

Richard Anthony Stout (appellant/plaintiff) v. Karen Angela Track (respondent/defendant)

(1303-0271-AC; 2015 ABCA 10)

Indexed As: Stout v. Track

Alberta Court of Appeal

Rowbotham and Wakeling, JJ.A., and Sulyma, J.(ad hoc)

February 5, 2015.

Summary:

The defendant terminated her tumultuous relationship with the plaintiff. When someone attempted to break into her home, the defendant called the police and identified him as a possible suspect based on his obsessive and harassing behaviour in attempting to continue the relationship. The plaintiff was arrested and charged with three offences respecting the attempted break-in. He was released on a recognizance requiring him to have no contact with the defendant. The plaintiff was subsequently convicted of six breaches of that recognizance, but acquitted on all charges related to the attempted break-in. The plaintiff commenced a malicious prosecution action for damages against the defendant. He alleged that she made false statements to police that led to his arrest, that there were no reasonable grounds to charge and prosecute him for the attempted break-in, and that his breaches of the recognizance were an indirect consequence of the defendant's false statements. The defendant applied under rule 3.68 to strike the statement of claim as an abuse of process or, alternatively, for summary judgment under rule 7.3 because there was no merit to the claim.

The Alberta Court of Queen's Bench, in a judgment reported (2013), 574 A.R. 59, granted summary judgment dismissing the claim under rule 7.3 on the ground that there was no prospect of success at trial. Alternatively, the court would have struck the statement of claim under rule 3.68 as an abuse of process. Further, had the claim not been struck, the court would have stayed the action until the no-contact probation ordered expired. The plaintiff was ordered to pay the defendant's trial costs to date on a solicitor and own client indemnity basis (defendant's litigation costs to be paid in full). The plaintiff appealed, arguing that the trial judge erred in applying the old test (genuine issue for trial) rather than the new test under rule 7.3 (no merit to the claim).

The Alberta Court of Appeal dismissed the appeal. The trial judge did not commit any palpable or overriding error in his conclusion. Applying either test reached the same result, as a finding that there was no genuine issue for trial resulted in there being no merit to the claim.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The defendant terminated her tumultuous relationship with the plaintiff - When someone attempted to break into her home, the defendant called the police and identified him as a possible suspect based on his obsessive and harassing behaviour in attempting to continue the relationship - The plaintiff was arrested and charged with three offences respecting the attempted break-in - He was released on a recognizance requiring him to have no contact with the defendant - The plaintiff was convicted of six breaches of that recognizance, but acquitted on all charges related to the attempted break-in - The plaintiff commenced a malicious prosecution claim against the defendant - He alleged that she made false statements to police that led to his arrest, that there were no reasonable grounds to charge and prosecute him for the attempted break-in, and that his recognizance breaches were an indirect consequence of the false statements - The trial judge granted summary judgment dismissing the claim under rule 7.3 on the ground that there was no prospect of success at trial - The defendant was the person who potentially "initiated" the criminal proceeding and it could be argued that he was successful in that proceeding - However, the defendant had subjective and objective reasonable and probable grounds to suggest to the police that the plaintiff was a possible, if not obvious, suspect - Also, there was no malice and, even if there was, the defendant had a legitimate basis to make the true statements that led to the charges - The plaintiff appealed, arguing that the trial judge erred in applying the old test (genuine issue for trial) rather than the new test under rule 7.3 (no merit to the claim) - The Alberta Court of Appeal dismissed the appeal - The trial judge did not commit any palpable or overriding error in his conclusion - Applying either test reached the same result, as a finding that there was no genuine issue for trial resulted in there being no merit to the claim - See paragraphs 1 to 4.

Practice - Topic 5708.1

Judgments and orders - Summary judgments - Bar to application - Merit to claim and facts to substantiate claim - [See Practice - Topic 2230 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See Practice - Topic 2230 ].

Torts - Topic 6156

Abuse of legal procedure - Malicious prosecution - Malice - What constitutes - [See Practice - Topic 2230 ].

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - [See Practice - Topic 2230 ].

Torts - Topic 6163

Abuse of legal procedure - Malicious prosecution - Persons responsible - [See Practice - Topic 2230 ].

Torts - Topic 6165

Abuse of legal procedure - Malicious prosecution - Favourable termination of proceeding - [See Practice - Topic 2230 ].

Cases Noticed:

W.P. et al. v. Alberta et al. (2014), 588 A.R. 110; 626 W.A.C. 110; 2014 ABCA 404, refd to. [para. 9, footnote 3].

Can v. Calgary Chief of Police et al. (2014), 584 A.R. 147; 623 W.A.C. 147; 315 C.C.C.(3d) 337 (C.A.), refd to. [para. 9, footnote 3].

Access Mortgage Corp. (2004) Ltd. v. Arres Capital Inc. (2014), 584 A.R. 68; 623 W.A.C. 68; 2014 ABCA 280, refd to. [para. 9, footnote 3].

Orr v. Fort McKay First Nation (2014), 587 A.R. 16; 2014 ABQB 111, refd to. [para. 9, footnote 3].

Beier et al. v. Proper Cat Construction Ltd. et al. (2013), 564 A.R. 357; 2013 ABQB 351, refd to. [para. 9, footnote 3].

O'Hanlon Paving Ltd. v. Serengetti Developments Ltd. et al. (2013), 567 A.R. 140; 91 Alta. L.R.(5th) 1 (Q.B.), refd to. [para. 9, footnote 3].

Deguire v. Burnett (2013), 568 A.R. 341; 2013 ABQB 488, refd to. [para. 9, footnote 3].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 38, footnote 45].

Hicks v. Faulkner (1878), 8 Q.B.D. 167, refd to. [para. 38, footnote 47].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 43, footnote 54].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 43, footnote 54].

Windsor v. Canadian Pacific Railway Ltd. (2014), 572 A.R. 317; 609 W.A.C. 317; 2014 ABCA 108, refd to. [para. 43, footnote 54].

Apsley v. Boeing Co. (2010), 722 F. Supp.2d 1218 (Dist. Kan.), refd to. [para. 43, footnote 54].

Pioneer Exploration Inc. (Bankrupt) v. Euro-Am Pacific Enterprises Ltd. et al. (2003), 339 A.R. 165; 312 W.A.C. 165; 2003 ABCA 298, refd to. [para. 50, footnote 66].

Tucson Properties Ltd. v. Sentry Resources Ltd. and Fournel (1982), 39 A.R. 341; 22 Alta. L.R.(2d) 44 (Q.B. Master), refd to. [para. 50, footnote 66].

Compton Petroleum Corp. v. Alberta Power Ltd. (1999), 242 A.R. 3 (Q.B.), refd to. [para. 51, footnote 71].

Blue Range Resource Corp., Re (2001), 281 A.R. 351; 248 W.A.C. 351; 202 D.L.R.(4th) 523 (C.A.), refd to. [para. 62, footnote 82].

Enron Canada Corp. v. National Oilwell Canada Ltd. - see Blue Range Resource Corp., Re.

Reilly, P.C.J. v. Wachowich, C.J.P.C., [2001] 1 W.W.R. 55; 266 A.R. 296; 228 W.A.C. 296 (C.A.), refd to. [para. 62, footnote 82].

Sidorsky et al. v. C.F.C.N. Communications Ltd. et al. (1997), 206 A.R. 382; 156 W.A.C. 382; 53 Alta. L.R.(3d) 255 (C.A.), refd to. [para. 62, footnote 82].

Canadian Commercial Bank (In Liquidation), Re (1989), 98 A.R. 353; 61 D.L.R.(4th) 161 (C.A.), refd to. [para. 62, footnote 82].

Canada Deposit Insurance Corp. v. Canadian Commercial Bank - see Canadian Commercial Bank (In Liquidation), Re.

College of Physicians and Surgeons (Alta.) v. J.H. et al. (2009), 468 A.R. 101; 2009 ABQB 48, refd to. [para. 62, footnote 84].

Reilly, P.C.J. v. Wachowich, C.J.P.C., [2000] 4 W.W.R. 92; 252 A.R. 293 (Q.B.), refd to. [para. 62, footnote 84].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161 (Q.B.), refd to. [para. 62, footnote 84].

Authors and Works Noticed:

Bauman, The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating's act (1956), 31 Ind. L.J. 329, p. 3535 [para. 44, footnote 55].

Clark and Samenow, The Summary Judgment (1929), 38 Yale L.J. 423, generally [para. 44, footnote 57].

Counsel:

J.E. Lemarre, for the appellant;

P.J. Faulds, Q.C., and A.D. Bourgeois, for the respondent.

This appeal was heard on October 28, 2014, before Rowbotham and Wakeling, JJ.A., and Sulyma, J.(ad hoc), of the Alberta Court of Appeal.

On February 5, 2015, the following memorandum of judgment was filed, including the following opinions:

Rowbotham, J.A., and Sulyma, J.(ad hoc) - see paragraphs 1 to 4;

Wakeling, J.A. - see paragraphs 5 to 63.