Stout v. Track,

• Judge: Rooke
• Neutral Citation: 2013 ABQB 751
• Citation: (2013), 574 A.R. 59 (QB),2013 ABQB 751,574 AR 59,(2013), 574 AR 59 (QB),574 A.R. 59
• Date: 17 October 2013
• Court: Court of Queen's Bench of Alberta (Canada)

Stout v. Track (2013), 574 A.R. 59 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JA.064

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

(1203 16985; 2013 ABQB 751)

Indexed As: Stout v. Track

Alberta Court of Queen's Bench

Judicial District of Edmonton

Rooke, A.C.J.Q.B.

October 17, 2013.

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 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).

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 Alberta Court of Queen's Bench 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 the plaintiff 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 no 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 - Alternatively, the court would have struck the statement of claim under rule 3.68 as an abuse of process, as this was vexatious litigation for an improper purpose (revenge, maintain contact or obsessive and irrational attempt to get back together) - Further, had the claim not been struck, the court would have stayed the action until the no-contact probation ordered expired so as not to subvert the probation order - The plaintiff was ordered to pay the defendant's litigation costs to be paid in full (solicitor and own client indemnity basis) - See paragraphs 25 to 89.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See Practice - Topic 2230 ].

Practice - Topic 5276

Trials - General - Stay of proceedings - Stay of trial - [See Practice - Topic 2230 ].

Practice - Topic 5370

Dismissal of action - Grounds - General and want of prosecution - Frivolous or vexatious actions - [See Practice - Topic 2230 ].

Practice - Topic 5719

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

Practice - Topic 7803

Costs - Solicitor and his own client costs - Entitlement to - General - [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:

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 74 D.L.R.(4th) 321, refd to. [para. 19].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 186 D.L.R.(4th) 226; 2000 ABCA 121, refd to. [para. 19].

Donaldson v. Farrell et al., [2011] A.R. Uned. 51; 2011 ABQB 11, refd to. [para. 20].

Haljan v. Serdahely Estate - see Serdahely Estate, Re.

Serdahely Estate, Re (2008), 453 A.R. 337; 2008 ABQB 472, refd to. [para. 20].

Reece et al. v. Edmonton (City) (2011), 513 A.R. 199; 530 W.A.C. 199; 335 D.L.R.(4th) 600; 2011 ABCA 238, refd to. [para. 21].

Wong v. Leung - see V.W.W. v. Leung.

V.W.W. v. Leung (2011), 530 A.R. 82; 2011 ABQB 688 (Master), refd to. [para. 21].

McMeekin v. Alberta (Attorney General) et al. (2012), 537 A.R. 136; 2012 ABQB 144, refd to. [para. 21].

Manufacturers Life Insurance Co. v. Executive Centre at Manulife Place Inc., [2011] A.R. Uned. 252; 48 Alta. L.R.(5th) 178; 2011 ABQB 189, refd to. [para. 22].

Encana Corp. v. ARC Resources Ltd. (2011), 523 A.R. 108; 2011 ABQB 431, refd to. [para. 22].

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, refd to. [para. 22].

Envision Edmonton Opportunities Society et al. v. Edmonton (City) (2011), 507 A.R. 275; 2011 ABQB 29, refd to. [para. 24].

G.H. v. Alcock et al., [2013] A.R. Uned. 38; 2013 ABCA 24, refd to. [para. 37].

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

Radford v. Stewart (2010), 496 A.R. 302; 2010 ABQB 586, refd to. [para. 39].

Casey v. Automobiles Renault Canada Ltd., [1965] S.C.R. 607; 54 D.L.R.(2d) 600, refd to. [para. 40].

Radford v. Stewart (2006), 384 A.R. 167; 367 W.A.C. 167; 2006 ABCA 157, refd to. [para. 40].

Banks v. Bliefernich (1988), 24 B.C.L.R.(2d) 397; 44 C.C.L.T. 144 (S.C.), refd to. [para. 44].

Boudreault v. Barrett et al. (1998), 219 A.R. 67; 179 W.A.C. 67; 1998 ABCA 232, refd to. [para. 49].

Tailleur et al. v. Grande Prairie General and Auxiliary Hospital and Nursing Home District No. 14 et al. (1996), 180 A.R. 389; 38 Alta. L.R.(3d) 112 (Q.B.), revd. (1999), 228 A.R. 274; 188 W.A.C. 274; 1999 ABCA 2, leave to appeal refused (1999), 252 N.R. 194; 255 A.R. 397; 220 W.A.C. 397 (S.C.C.), refd to. [para. 69].

Layden and Layden (J.B.) Oilfield Contractors Ltd. v. Cope et al. (1984), 52 A.R. 70; 28 C.C.L.T. 140 (Q.B.), refd to. [para. 69].

Maldonado v. Bourassa (1988), 92 A.R. 337; 13 A.C.W.S.(3d) 153 (Q.B.), varied on other grounds (1990), 108 A.R. 321; 22 A.C.W.S.(3d) 1045 (C.A.), refd to. [para. 69].

S.A.D. et al. v. C.A.H. et al., [2003] B.C.T.C. 1535; 125 A.C.W.S.(3d) 1072; 2003 BCSC 1535, refd to. [para. 70].

Ribeiro v. Canadian Imperial Bank of Commerce (1992), 13 O.R.(3d) 278; 44 C.C.E.L. 165 (C.A.), refd to. [para. 70].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 73].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 75].

Canam Enterprises Inc. v. Coles et al. (2000), 139 O.A.C. 1; 51 O.R.(3d) 481; 194 D.L.R.(4th) 648 (C.A.), affd. [2002] 3 S.C.R. 307; 296 N.R. 257; 167 O.A.C. 1; 2002 SCC 63, refd to. [para. 75].

Onischuk v. Alberta et al. (2013), 555 A.R. 330; 2013 ABQB 89, refd to. [para. 76].

Dykun v. Odishaw et al. (2000), 267 A.R. 318; 2000 ABQB 548, refd to. [para. 77].

Starr et al. v. Houlden, [1990] 1 S.C.R. 1366; 110 N.R. 81; 41 O.A.C. 81; 68 D.L.R.(4th) 641, refd to. [para. 79].

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al., [2011] 3 S.C.R. 422; 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1; 2011 SCC 52, refd to. [para. 84].

R. v. Verral (S.B.) (2003), 330 A.R. 171; 299 W.A.C. 171; 2003 ABCA 184, refd to. [para. 86].

R. v. Wall (P.J.) (1995), 136 Nfld. & P.E.I.R. 200; 423 A.P.R. 200; 29 W.C.B.(2d) 441 (P.E.I.C.A.), refd to. [para. 86].

Brown v. Silvera (2010), 488 A.R. 22; 2010 ABQB 224, refd to. [para. 88].

Walsh v. Mobil Oil Canada et al. (2008), 440 A.R. 199; 438 W.A.C. 199; 2008 ABCA 268, refd to. [para. 88].

Hamilton v. Open Window Bakery Ltd. et al., [2004] 1 S.C.R. 303; 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 88].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 108 D.L.R.(4th) 193, refd to. [para. 88].

College of Physicians and Surgeons (Alta.) v. J.H. et al. (2009), 468 A.R. 101; 2009 ABQB 48, refd to. [para. 88].

Foulis v. Robinson (1978), 21 O.R.(2d) 769; 92 D.L.R.(3d) 134 (C.A.), refd to. [para. 88].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161; 8 Alta. L.R.(3d) 403 (Q.B.), affd. (1994), 155 A.R. 42; 73 W.A.C. 42 (C.A.), refd to. [para. 88].

Polar Ice Express Inc. v. Arctic Glacier Inc. (2009), 446 A.R. 295; 442 W.A.C. 295; 2009 ABCA 20, refd to. [para. 88].

Statutes Noticed:

Rules of Court (Alta.), rule 1.2(1), rule 1.2(2)(b), rule 1.2(3) [para. 23]; rule 3.68(1), rule 3.68(2), rule 7.3(1) [para. 17].

Counsel:

Jennifer E. Lamarre (Ogilvie LLP), for the plaintiff;

P. Jon Faulds, Q.C., and A. Danielle Bourgeois (Field LLP), for the defendant.

This application was heard on October 17, 2013, before Rooke, A.C.J.Q.B., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered judgment orally on the same date, with the following written reasons filed on December 19, 2013.