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 Court.

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 entered;

(d) that an action, an application or a proceeding be stayed.

(2) The conditions for the order are one or more of the following:

(a) the Court has no jurisdiction;

(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 Rule 3.68(2).

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.