Civil Procedure - Motion to Strike
Civil Procedure - Motions - Conversion of Nature of Motion
Baradaran v. Alexanian (Ont CA, 2016)
In this case the Court of Appeal clarified practice in motions to strike and in converting motions made of one nature to another nature (here a motion to strike into a summary judgment motion). The court below had granted a defendant's motion to strike brought under rules 21.01(3)(d) [stay or dismissal as frivolous and vexatious] and 25.11 [to strike pleadings as frivolous and vexatious, or as an abuse of process]. The motions court relied in part on an extensive affidavit of the defendant, which addressed the merits of the case, to strike key paragraphs of the pleadings. The Court of Appeal however allowed an appeal on the basis that the motions court had effectively converted what was originally a motion to strike into a motion for summary judgment, with the following comments:
 First, the motion judge erred in approaching the motion, which was a motion to strike pleadings under rules 21.01(3)(d) and 25.11, as though he were determining a motion for summary judgment under rule 20. While the motion judge could consider evidence on such a motion, the evidence on which he based his decision went to the merits of the claims. The motion judge accepted the solicitor’s evidence, that the appellant had been advised that two of the actions the respondent had been retained to litigate were ill-conceived and he accepted the solicitor’s account of what transpired in his handling of all of the actions. In doing so, the motion judge did not address obvious inconsistencies in the evidence, including the appellant’s assertion in his own affidavit that Mr. Alexanian said he had “a great chance to win [the] claims”. From comments in the transcript it is apparent that the motion judge considered the solicitor’s evidence to be uncontradicted.
 The propriety of the use of rules 21 and 25 was not addressed by the motion judge in the court below.
 In this court, the respondents sought to justify the decision of the motion judge as being properly made under rule 25.11. First, the respondents asserted that, since rule 25.11 permitted evidence to be filed on such a motion, the judge did not err in considering such evidence in making his decision, even if the evidence he considered went to the merits. Second, the respondents argued that the motion judge could have converted the pleadings motion into a motion for summary judgment and that no prejudice resulted to the appellant because he knew the issues he had to meet.
 We reject these arguments.
 The purpose of a motion to strike paragraphs in a statement of claim is to weed out claims that have no possibility of success. Pleadings motions are brought early in the litigation and before the opposing party has pleaded in response. When a pleading is struck, the court must consider whether to grant leave to amend. A summary judgment motion, by contrast, can only be brought after pleadings are exchanged: rule 20.01(3). This is for good reason. Summary judgment disposes of the merits of a claim or defence.
 The court will only strike out a claim on the basis that it is frivolous or vexatious or an abuse of the process of the court, in the clearest of cases and where it is plain and obvious that the case cannot succeed. One must guard against converting such motions into summary judgment motions: Miguna v. Toronto Police Services Board, 2008 ONCA 799 (CanLII), 243 O.A.C. 62, at paras. 16 and 21. In that case, Blair J.A. addressed the very point made by the respondents – that the motion judge was entitled to evaluate the merits of the appellants’ claims because affidavit evidence was admissible on the motion. He stated, at para. 34:
Evidence is admissible in relation to a rule 25.11 motion or in relation to the "frivolous and vexatious" aspect of a motion under rule 21.01(3)(d). It does not follow, however, that such a motion may be turned into an evidentiary disposition. The test remains: is it plain and obvious that the claim cannot succeed? The test is not whether it is unlikely the claim will succeed. Nor is the process one of weighing and assessing the evidence against the allegations as if the motion were a trial or a request for summary judgment. This means that, while evidence is admissible in a motion under rules 25.11 and 21.01(3)(d), the evidence must be relevant to, and considered for the purposes of, the motion that is before the court. In other words, the ability to file evidence in a pleadings motion does not change the character of the motion, which is not to determine the merits, but to decide whether the pleading should be struck, as having no chance of success because it is frivolous and vexatious or an abuse of process. For these reasons, we reject the respondents’ contention that the motion judge was acting within the proper scope of rules 21.01(3)(d) and 25.11 in striking the relevant paragraphs of the statement of claim based on Mr. Alexanian’s affidavit evidence.
 We also reject the respondents’ alternative argument that the motion judge was entitled to convert the motion to a summary judgment motion, where the appellant had the opportunity to tender evidence and to respond to the motion judge’s questions about the merits of his claim. Rule 20 permits a summary judgment motion to be brought only after pleadings have been exchanged: in this case no statement of defence had been delivered. Further, the appellant was entitled to rely on the notice of motion, and the relief sought by the respondents, which was to strike certain paragraphs in his pleading, and not for summary judgment. Finally, certain interchanges in the transcript show that the appellant was taken by surprise at the motion judge’s approach, when he was challenged on the merits of the claim. And, to the extent that the motion judge considered the merits, he was wrong to state that there was no evidence to contradict that of Mr. Alexanian.
 It is clear from both the endorsement and the transcript of the hearing before the motion judge, that he approached this case as a summary judgment motion. While he used the term “vexatious” liberally in both his endorsement and his comments in court, and labeled the paragraphs in the pleading as well as the entire action as vexatious and an abuse of process, the motion judge conducted a merits-based analysis of the evidence. Indeed, he commented at the end of his endorsement that the appellant’s claim was “entirely without merit”. Further, the fact that the motion judge struck the paragraphs without leave to amend, without giving proper or any consideration to whether the claims were capable of being amended, reinforces the conclusion that he approached the motion as a summary judgment motion and not as a motion respecting pleadings.