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CIVIL PROCEDURE - Pleadings - Striking out pleadings or allegations 

Friday, October 23, 2020 @ 6:17 AM  


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Appeal by the plaintiff from decisions of the case management judge that dismissed her application to amend her statements of claim and allowed the respondents’ applications to strike the claims. The appellant alleged fraud, misrepresentation and harassment against the respondent lawyers, who represented Whidden, the defendant in a separate claim commenced by the appellant. The dismissal of the appellant’s action against Whidden was upheld by the Court of Appeal. The appellant sought to add the additional causes of action of defamation and breach of privacy. The case management judge refused to recuse herself. She awarded the respondents enhanced costs of $22,155.

HELD: Appeal dismissed. There was no prejudice to the appellant in the case management judge’s decision to address the existing claims first and then to consider the amendments given the factual and legal overlap between the applications and given the amendments were intended to introduce new causes of action rather than to clarify the existing claims. The case management judge correctly concluded that only in circumstances of bad faith did counsel owe a duty of care to the opposing side. The record supported her conclusion that there was no reasonable possibility the appellant could fit within that exception. The respondents’ conduct represented nothing out of the ordinary in the normal course of the adversarial process in which the respondents advocated for their client. The case management judge reasonably concluded the existing claims were doomed to fail. She provided sufficient reasons. The appellant did not displace the strong presumption of judicial impartiality. There was no error in awarding enhanced costs due to the appellant’s unproven allegations of professional impropriety against the respondents.

Carbone v. McMahon, [2020] A.J. No. 969, Alberta Court of Appeal, M.S. Paperny, M.G. Crighton and J. Antonio JJ.A., September 17, 2020. Digest No. TLD-October192020009