Case information

Civil Procedure – Pleadings – Whether requirements to strike out a Statement of Claim were properly applied or met – Can a regulatory body appoint one of its own (prosecutor) lawyers to act as “independent legal counsel” to a discipline tribunal and then actively conceal the prosecutor’s true identity from the member – Is the tort of malicious prosecution the proper tort for the liability created by the facts of this case or is there a novel claim in law – Did the lower courts adopt, and follow, the proper test for an application brought under Rule 3.68 of the Alberta Rules of Court, Alta Reg. 124/2010.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

During the hearing of a complaint of professional misconduct against the applicant, a Discipline Tribunal established by the Complaints Inquiry Committee (the “CIC”) of the Institute of Chartered Accountants of Alberta received independent advice on the applicant’s motion to strike the proceedings from the respondent, Ms. Hunka. Ms. Hunka gave advice on law and procedure and did not disclose to the Tribunal or the applicant that she had previously prosecuted other chartered accountants in other discipline proceedings on behalf of the CIC. The applicant brought an application for a stay of proceedings on the grounds that this constituted an irreconcilable conflict of interest giving rise to a reasonable apprehension of bias. His application was dismissed, but was successfully appealed and the discipline proceedings against the applicant were stayed.

The applicant brought an action against the respondents for malicious prosecution. A Master dismissed an application by the respondents to strike out the statement of claim, finding that while it did not fit within the traditional framework of malicious prosecution, it was a novel claim. The Alberta Court of Queen’s Bench allowed the respondents’ appeal on the basis that the Statement of Claim failed to allege facts in support two of the four mandatory components of the tort of malicious prosecution or establish a novel tort and that the claim had no reasonable possibility of success. The Alberta Court of Appeal dismissed the appeal.