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Pleadings - Motion to Strike

Jurisdiction - Choice of Law

Das v. George Weston Limited (Ont CA, 2018)

Here, in a complex international tort case, the court discusses the criteria for deciding R21 motions to strike claims as showing no reasonable cause of action:
[73] I do not accept these submissions. The proper approach to a r. 21 motion to strike a claim as disclosing no reasonable cause of action is easy to state: the motion judge is to accept the facts pleaded in the statement of claim as true to determine whether it is plain and obvious based on the current state of the law, including how it may be open to development, that the claim discloses no reasonable cause of action.

[74] That said, while the material facts that are pleaded in the statement of claim are assumed to be true for purposes of a motion to strike, bald conclusory statements of fact and allegations of legal conclusions unsupported by material facts are not: see Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121 (CanLII), 136 O.R. (3d) 654, at para. 15; Apotex Inc. v. Eli Lilly and Company, 2015 ONCA 305 (CanLII), 334 O.A.C. 99, at para. 21, leave to appeal refused, [2015] S.C.C.A. No. 291; Gratton-Masuy Environmental Technologies v. Ontario, 2010 ONCA 501 (CanLII), 101 O.R. (3d) 321, at paras. 101-3. Furthermore, the motion judge is entitled to examine documents that form part of the pleading as part of the material facts that are pleaded and accepted for the purpose of the motion: Web Offset Publications Ltd. v. Vickery (1999), 1999 CanLII 4462 (ON CA), 43 O.R. (3d) 802 (C.A.), at p. 803.

[75] In R. v. Imperial Tobacco, 2011 SCC 42 (CanLII), [2011] 3 S.C.R. 45, at para. 19, McLachlin C.J. explained that the power to strike out a claim is “a valuable housekeeping measure” that allows the court to weed out claims at an early stage while ensuring that claims “that have some chance of success go on to trial.” While the appellants submitted that any claim should be allowed to proceed unless it has been specifically addressed and rejected as legally untenable by the courts, relying on Dalex Co. v. Schwartz Levitsky Feldman (1994), 1994 CanLII 7290 (ON SC), 19 O.R. (3d) 463 (Gen. Div.), at p. 466, the Supreme Court’s articulation in Imperial Tobacco is the binding test. In that case, the court confirmed that a claim will not be struck simply because it is novel: at para. 21. If, however, it is plain and obvious that the pleading discloses no reasonable cause of action, it cannot proceed: Imperial Tobacco, at para. 17; see also Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980. It must have a “reasonable prospect of success”: Imperial Tobacco, at para. 17.
Additionally, the court considers the rules for choice of law (the international jurisdiction's law that applies to the case):
[83] The parties agree that the Supreme Court’s decision in Tolofson provides the framework for the choice of law analysis in tort. In Tolofson, the Supreme Court held that, generally, tort claims should be governed by the substantive law of the place where the activity or wrong occurred, that is to say, the lex loci delicti: at pp. 1049-50. The court also recognized a narrow exception, namely, where its application would give rise to an injustice: Tolofson, at pp. 1052, 1054. La Forest J. wrote, at pp. 1049-50:
[I]t seems axiomatic to me that, at least as a general rule, the law to be applied in torts is the law of the place where the activity occurred, i.e., the lex loci delicti. There are situations, of course, notably where an act occurs in one place but the consequences are directly felt elsewhere, when the issue of where the tort takes place itself raises thorny issues. In such a case, it may well be that the consequences would be held to constitute the wrong.
[84] La Forest J. acknowledged, at p. 1054, that a strict application of the lex loci delicti rule may give rise to an injustice at the international level, but envisaged few cases that would warrant departing from the general rule:
I have already indicated, of course, that I view the lex loci delicti rule as the governing law. However, because a rigid rule on the international level could give rise to injustice, in certain circumstances, I am not averse to retaining a discretion in the court to apply our own law to deal with such circumstances. I can, however, imagine few cases where this would be necessary.

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