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Civil Litigation Dicta - Pleadings, Narrowing (by any Party) - Striking Pleadings [R21.01(1)(b)] - Leave to Amend Pleadings After Striking. Del Giudice v. Thompson
In Del Giudice v. Thompson (Ont CA, 2023) the Court of Appeal considered whether various causes of action for data breach claims were made out, here in determining whether causes of action where pleaded in class certification purposes.
In these quotes the court considers granting leave to amend struck pleadings, here where the defendants advance a successful RCP 21 striking pleadings motion:C. STRIKING OUT THE CLAIMS WITHOUT LEAVE TO AMEND
[63] A motion judge’s decision to strike out a pleading under r. 25.11 without leave to amend is discretionary and should not be interfered with on appeal unless the motion judge erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable conclusion: Resolute Forest Products Inc. v. Greenpeace, 2016 ONSC 5398, 133 O.R. (3d) 167 (Div. Ct.), at para. 13; Huachangda Canada Holdings Inc. v. Solcz Group Inc., 2019 ONCA 649, 147 O.R. (3d) 644, at para. 30.
[64] The motion judge found that the claim “egregiously contravene[d] the rules of pleading”. The reasons for decision are careful and comprehensive and explain the bases on which each of the 78 problematic paragraphs were found to have violated the rules of pleading and were struck. The appellants have not established that the motion judge erred in this exercise of discretion.
[65] Having concluded that the action could not succeed as pleaded, the motion judge struck out the claim in its entirety, without leave to amend. The appellants argue that it was an error not to grant leave to amend, given the motion judge’s acceptance that “if difficulties in commonalities could be overcome, the Plaintiffs might have had a straightforward, reasonably strong, and possibly certifiable data breach case for breach of contract against Capital One for the 2019 data breach.”
[66] I would defer to the motion judge’s decision not to grant leave to amend. The appellants were provided with repeated opportunities to amend the statement of claim, by which they only compounded their problems. The motion judge did not believe that there were any facts that could be pleaded that would support the causes of action that the appellants wished to advance. It is of no use to the appellants that the motion judge entertained the thought that the appellants could have pleaded a straightforward claim for breach of contract against Capital One. Not only were these straightforward claims not advanced in the statement of claim, they would have also hampered the claims the appellants chose to advance. At this stage of the proceeding, the motion judge saw no purpose to be served in allowing the appellants another opportunity to recast its theory of liability. The appellants were given ample opportunity to advance a viable claim and are now out of runway. . Asghar v. Toronto Police Services Board
In Asghar v. Toronto Police Services Board (Ont CA, 2019) the Court of Appeal commented on the granting of leave to amend after a R21 motion:[9] The usual result when a pleading is struck is to grant leave to amend. The principles are set out in Spar Roofing & Metal Supplies Ltd. v. Glynn, 2016 ONCA 296, 348 O.A.C. 330, at paras. 35-45, where Weiler J.A. pointed out that this approach is consistent with the generous approach to pleadings amendment under r. 26. Leave to amend should accordingly be denied only in the clearest of cases: South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6; and Tran v. University of Western Ontario, 2015 ONCA 295, at para. 26. . TSI International Group Inc. v. Formosa
In TSI International Group Inc. v. Formosa (Ont CA, 2017) the Court of Appeal makes clear that, absent a clear basis for denying it, leave to amend struck pleadings should be granted if requested:[1] We are able to dispose of this appeal without addressing the substantive grounds of appeal raised. The motion judge ought to have granted leave to amend after striking from the appellants’ statement of defence and counterclaim the defence of “clean hands” and the counterclaim of “abuse of process”, and a number of paragraphs. Leave to amend should be denied only in the clearest of cases. The motion judge did not explicitly explain why he refused leave to amend. We are not persuaded by respondent’s counsel’s submission that the explanation is apparent from reading the reasons as a whole.
[2] As in Tran v. University of Western Ontario, 2015 ONCA 295 (CanLII), we conclude that in the absence of any articulated basis on which leave was denied and in the absence of any prior amendment, the appellants should not be deprived of the opportunity to amend their pleadings. . Conway v. The Law Society of Upper Canada
In Conway v. The Law Society of Upper Canada (Ont CA, 2016) the Court of Appeal generally stated the principles applicable to granting leave to amend a claim that has been struck down on a motion striking pleadings: ii. Whether leave to amend the statement of claim should have been granted:
[15] The appellant argues that the motion judge erred in determining that the appellant should not be granted leave to amend his pleading because of the motion judge’s conclusion that there was no actionable tort possible on the facts as alleged in the statement of claim.
[16] The decision not to grant leave to amend should only be made in the clearest of cases, when it is plain and obvious that no tenable cause of action is possible on the facts as alleged: South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456 (CanLII), at para. 6. That said, the decision whether or not to grant leave to amend a pleading is a discretionary one, and absent palpable and overriding error of fact or error of law, such a decision is subject to deference on appeal: Mortazavi v. University of Toronto, 2013 ONCA 655 (CanLII), at para. 3. . Shaulov v. Law Society of Ontario
In Shaulov v. Law Society of Ontario (Ont CA, 2023) the Court of Appeal granted leave to amend pleadings that alleged culturally discriminatory practices by the Law Society of Ontario. This aspect of the case highlights the importance of the "accept the pleaded facts as true for the purpose of the motion" element of R21.01(1)(b) motions, especially in ambitious context of this particular Charter context:[15] However, I disagree with the motion judge’s narrow characterization of the appellant’s claims against the LSO as based merely on two categories of discrimination. Given the factual matrix pleaded, which the motion judge had to accept as true at the pleadings stage, and the requirement to read the pleadings generously, she should have considered the tenability of the appellant’s discrimination claims from the larger perspective of claims based on discrimination in general, rather than on particular categories of discrimination.
[16] As the appellant ably clarified in his submissions on appeal, at the heart of his s. 15 Charter and Code claims against the LSO is that he was discriminated against by the LSO because of the structure and contents of its licensing examinations, which are alleged to penalize him culturally, ideologically and linguistically. Specifically, the appellant alleges that the ideological, cultural and linguistic orientation of the structure and contents of the LSO’s licensing examinations prevent him, a person from a different ideological, cultural and linguistic background, from succeeding on the examinations. They are discriminatory, according to the appellant, because they do not test his competency to practice law, which was attested to by his articling principal and the LPP lawyers, but discriminate against him because of their alleged inappropriate ideological, cultural and linguistic slant. The appellant maintains that this is not a case where accommodations would have assisted him; rather, there is something fundamentally discriminatory about the structure and contents of the LSO’s licensing examinations.
[17] Moreover, the appellant says that without the discovery process, he is unable to plead further particulars of the alleged discriminatory structure of the licensing examinations. In his statement of claim, he requests an “interim, interlocutory, and permanent injunction” compelling production of documents and information relating to the licensing examinations, including all versions of his written examinations with answer sheets. Counsel for the LSO confirmed during the hearing of the appeal that the appellant would not have access to the examination questions and answers which he says he needs to make his claim, although he could have engaged the LSO procedure to meet and go over his examinations. The rightness or reasonableness of the LSO’s decision not to make available the requested documentation and information, some of which could be confidential or subject to privilege, is not before us. However, it seems to me that if the requested information and documentation was unavailable to the appellant before he started his claim, it would be premature to find at this stage that the appellant’s pleading is fatally defective and cannot be cured by amendment because of a lack of particulars which may be in the LSO’s power to provide through the discovery process.
[18] I return to the fact that these proceedings are at the pleadings stage. While the claims are baldly pleaded and require amendment, the appellant has articulated a basis for his claims against the LSO. It is too early to conclude that the appellant’s claims are doomed to failure and that he will be unable to allege further, material particulars to support his allegations. So long as he pleads a legally tenable claim, he can plead whatever particulars he has at this point and then provide further particulars at his examination for discovery or seek to amend his pleadings once he obtains written and oral discovery from the LSO.
[19] In addition to whatever further particulars the appellant may plead or obtain, it is sufficient at this stage that he pleads discrimination because of the allegedly inappropriate ideological, cultural and linguistic structure and contents of the licensing examinations. It is not necessary at the pleadings stage that he rigidly categorize the bases for the discriminatory effects of the licensing examinations. The motion judge’s decision to narrow the claim to only one category of discrimination was therefore premature, particularly in light of the fact that she granted leave to amend on part of the discrimination claim.
[20] Accordingly, the appellant is granted leave to amend his s. 15 Charter and Code claims against the LSO generally with respect to discrimination and is not limited to pleading discrimination based only on race, culture and ethnic background. . Abbasbayli v. Fiera Foods Company
In Abbasbayli v. Fiera Foods Company (Ont CA, 2021) the Court of Appeal considers the nature of a RCP R21.01(1)(b) motion [failure to disclose a reasonable cause of action]:(1) The Order Striking Claims Under Rule 21.01(1)(b)
[20] I consider first the motion judge’s order striking the s. 81 ESA and the s. 131 OBCA claims without leave to amend and the s. 248 OBCA claim with leave to amend. The motion judge struck these claims under r. 21.01(1)(b) for failure to disclose a reasonable cause of action. The test is whether, assuming that the facts as stated can be proved, and reading the pleading generously with allowances for drafting deficiencies, it is “plain and obvious” that an action or a claim within the action will not succeed: see Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at pp. 979-80; Wellington v. Ontario, 2011 ONCA 274, 105 O.R. (3d) 81, at para. 14, leave to appeal refused, [2011] S.C.C.A. No. 258; Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526, at paras. 15-16. Striking pleadings under this rule serves to “[weed] out the hopeless claims and [ensure] that those that have some chance of success go on to trial”: see R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 19. A pleading in a statement of claim will be deficient under this rule where it fails to plead material facts required to sustain a particular cause of action: see Apotex Inc. v. Eli Lilly and Co., 2015 ONCA 305, 125 O.R. (3d) 561, at para. 21, leave to appeal refused, [2015] S.C.C.A. No. 291. The court should always consider whether the deficiency can be addressed through an amendment to the pleading: see Tran v. University of Western Ontario, 2015 ONCA 295, at paras. 26-27.
[21] As I will explain, in my view the motion judge was correct to have struck the claim under s. 81 of the ESA without leave to amend as it is plain and obvious that the claim could not succeed, and no amendment could have rectified the pleading in the circumstances of this case. However, the motion judge ought not to have struck the s. 131 OBCA claim without leave to amend. A claim for unpaid vacation pay under this section could be asserted by the appellant against the individual respondents, with the appropriate amendments to the pleading. Finally, the motion judge did not err in striking the s. 248 claim with leave to amend, as the appellant did not plead the necessary material facts to support the claim, and the respondents do not cross-appeal the motion judge’s refusal to strike the s. 248 claim without leave to amend. . Chowdhury v. Exquisite Bay Development Inc.
In Chowdhury v. Exquisite Bay Development Inc. (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, here against a "motion(s) to strike the statement of claim under r. 21.01(1)(b)" ['no reasonable cause of action or defence']:[8] The motion judge recognized that striking a claim and denying leave to amend should only occur in the clearest of cases. ....
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