Simon's Megalomaniacal Legal Resources

Civil Litigation Dicta - Pleadings, Narrowing (by any Party) - Striking Pleadings [R21.01(1)(b)] - Class Actions

. McMillan v. Canada [class action]

In McMillan v. Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal, this from federal class action orders from a motion judge of the Superior Court that "dismissed Mr. McMillan’s motion to certify the action as a class proceeding on the basis that his statement of claim failed to disclose a reasonable cause of action" and refused "leave to amend his statement of claim".

Here the court sets out the appellate SOR for the CPA s.5(1)(a) 'failed to disclose a reasonable cause of action' issue [which is the same issue as striking pleadings under Ontario's RCP R21.01(1)(b)]:

[56] Whether a pleading discloses a reasonable cause of action is primarily a question of law. Consequently, the standard of appellate review of the Federal Court’s decision on both the motion to strike and the first certification condition is that of correctness: Brink v. Canada, 2024 FCA 43 at para. 40, leave to appeal to SCC refused, 41266 (10 October 2024); Canada (Attorney General) v. Nasogaluak, 2023 FCA 61 at para. 21, leave to appeal to SCC refused, 40734 (14 December 2023); Pioneer Corp. v. Godfrey, 2019 SCC 42 at para. 57; Canada (Attorney General) v. Jost, 2020 FCA 212 at para. 21. On this standard, this Court owes no deference to the Federal Court: Housen v. Nikolaisen, 2002 SCC 33 at para. 8.

. Owsianik v. Equifax Canada Co.

In Owsianik v. Equifax Canada Co. (Ont CA, 2022) the Court of Appeal considered an appeal (along with two other case released simultaneously) from motion orders below that declined class action certification of privacy claims in a larger class action. The issue was whether credit reporting agencies who had their stored data hacked were liable under the 'intrusion on seclusion' tort doctrine of Jones v Tsige (they weren't).

In these quotes the court considers a part of the certification test [CPA 5(1)(a)] which is the same test used to strike pleadings in a non-class actions [ie. whether the pleadings "disclose() a cause of action"] [under R21.01(1)(b)], how the court addresses purely legal issues that are not firmly established in law, and complications with this approach:

[11] The proceedings are still at the certification stage. There are no findings of fact, only allegations. The factual allegations are, however, taken as true for the purposes of determining whether Ms. Owsianik has pleaded a proper cause of action for intrusion upon seclusion: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 22; Bowman v. Ontario, 2022 ONCA 477, 83 C.C.L.T. (4th) 235, at paras. 25, 38-41.

....

(i) The test under s. 5(1)(a) of the Class Proceedings Act, 1992

[34] A court cannot certify a class proceeding unless the prerequisites to certification set down in s. 5(1) of the Act are met. Section 5(1)(a) requires:

The pleadings or the notice of application discloses a cause of action.

[35] A determination that a plaintiff has or has not pled a cause of action for the purposes of s. 5(1)(a) raises a question of law alone, reviewable on a correctness standard: Bowman, at para. 26.

[36] Counsel for Ms. Owsianik submits that the requirement in s. 5(1)(a) that the claim “disclose a cause of action” sets a low bar and is not intended to pre-empt novel, or tenuous claims. On the motion, the court must read the pleadings generously, accept as true the facts as pleaded and determine whether, on those facts, it is “plain and obvious” that the plaintiff has no cause of action against the defendant: Imperial Tobacco, at para. 17; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980.

[37] The test to be applied in deciding whether a claim discloses a cause of action for the purposes of s. 5(1)(a) is the same as the test to be applied on a motion to strike a pleading as disclosing no reasonable cause of action under r. 21.01(1)(b): Babstock, at para. 14. I accept that a claim should only be struck if it is “plain and obvious” that the claim cannot succeed. I also agree that Babstock has not altered that test.

[38] Babstock is, however, helpful in that it demonstrates the application of the “plain and obvious” criterion in circumstances in which novel legal claims are advanced by plaintiffs. In Babstock, the plaintiffs relied on the doctrine of waiver of tort in support of one of the claims advanced by them. The defendant moved to strike, claiming that the doctrine did not exist in Canadian law and therefore the cause of action based on the doctrine could not succeed.

....

[41] In Babstock, at para. 19, Brown J. addressed the application of the “plain and obvious” criterion to a case in which a novel claim is advanced, the viability of which turned exclusively on the application of the law as determined on the motion to the facts as pled by the plaintiff:

Of course, it is not determinative on a motion to strike that the law has not yet recognized the particular claim. The law is not static, and novel claims that might represent an incremental development in the law should be allowed to proceed to trial [citation omitted]. That said, a claim will not survive an application to strike simply because it is novel. It is beneficial, and indeed critical to the viability of civil justice and public access thereto that claims, including novel claims, which are doomed to fail be disposed of at an early stage in the proceedings. This is because such claims present “no legal justification for a protracted and expensive trial” [citation omitted]. If a court would not recognize a novel claim when the facts as pleaded are taken to be true, the claim is plainly doomed to fail and should be struck. In making this determination, it is not uncommon for courts to resolve complex questions of law and policy [citations omitted]. [Emphasis added.]

[42] I take the majority in Babstock to recognize that when the validity of a claim turns exclusively on the resolution of a legal question, the court may on a pleadings motion, even if the answer to the legal question is complex, policy-laden and open to some debate, determine the law and apply the law as determined to the facts as pleaded to decide whether “the claim is plainly doomed to fail and should be struck.”

[43] Babstock is consistent with prior authority from the Supreme Court of Canada. In Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, the plaintiff sued the Crown and the Attorney General of Ontario for malicious prosecution. The defendants brought a pretrial motion to strike the claim on the basis that the Crown and the Attorney General enjoyed absolute immunity from a malicious prosecution lawsuit. The motion judge and a unanimous Court of Appeal accepted that argument. The majority of the Supreme Court reversed, holding that, while the Crown was immune from prosecution, the Attorney General and his agents were not.

[44] Lamer J., for five of six judges, held, at pp. 176-77, that the immunity of the Crown and the Attorney General was properly determined on a pretrial motion, whether that motion was styled as a motion on a question of law or a motion to strike the claim as not revealing a cause of action. Lamer J. described the immunity issue as raising “a question of law that goes to the root of the action”. In his view, a timely pretrial determination of the legal viability of the malicious prosecution claim against the Attorney General would expedite the proceedings and potentially save unnecessary costs.

[45] The question of the Attorney General’s immunity from a malicious prosecution lawsuit could hardly be described as “fully settled” law at the time of the Nelles litigation. Five judges, including the motion judge, three judges of this court, and one judge of the Supreme Court of Canada, held the Attorney General had immunity. The five-person majority in the Supreme Court, however, held that the Attorney General did not enjoy immunity from a malicious prosecution lawsuit. As set out in the judgment of Lamer J., the law in other jurisdictions was also unclear and unsettled. Despite the contentious nature of the legal issue, the majority held that it could properly decide that issue on a pretrial pleadings motion. This same approach is reflected in the recent judgment of the Supreme Court of Canada in Ontario (Attorney General) v. Clark, 2021 SCC 18, 456 D.L.R. (4th) 361. There, the court struck a misfeasance in public office claim on the basis that the tort could not be extended to a claim brought by police officers against Crown attorneys in respect of their conduct of a prosecution.

[46] As catalogued by Brown J. in Babstock, there are several advantages to determining the viability in law of a claim on a pleadings motion when that viability turns exclusively on a question of law and the only material facts relevant to the question are those pled by the plaintiff. Deciding those questions early in the litigation serves judicial efficiency, enhances access to justice, and promotes certainty in the law: Babstock, at paras. 18-21; see also Arora v. Whirlpool Canada LP, 2013 ONCA 657, 118 O.R. (3d) 113, at paras. 90-93, leave to appeal refused, [2013] S.C.C.A. No. 498; Stephen G.A. Pitel & Matthew B. Lerner, “Resolving Questions of Law: A Modern Approach to Rule 21” (2014) 43:3 Adv. Q. 344.

[47] The effect of leaving legal questions bearing on the viability of a claim unresolved while the claim proceeds through trial is evident from a review of the class action proceedings involving intrusion upon seclusion claims against Database Defendants. Several of those claims have been allowed to move forward, not on the basis that the intrusion upon seclusion claim could actually be made out against the Database Defendant, but rather on the basis that it was not “plain and obvious” the claim could not succeed. Those decisions leave the law unclear and the ultimate viability of the claim uncertain.

[48] Class proceeding actions in which an intrusion upon seclusion claim is made against Database Defendants have continued to enter the system and continued to be certified on the same basis up to the Divisional Court’s decision in this case. As these cases have slowly wended their way through the system, consuming valuable litigation resources, no one could say with any certainty whether the cause of action asserted in these claims existed as a matter of law. That question would only be answered in the litigation if and when one of the claims actually made it through trial. If a claim actually got that far, the trial judge would be obligated to decide exactly the same legal question that was before the motion judge on the certification motion months, if not years, earlier. And yet the trial judge would be in no better position to resolve that question than the motion judge.

[49] Not only did allowing these cases to proceed to trial result in uncertainty, that uncertainty arguably resulted in unfairness to Database Defendants. The certification of intrusion upon seclusion claims without a determination that the claim was viable in law gave a plaintiff an advantage in certification proceedings. Because damages for intrusion upon seclusion do not require proof of any actual pecuniary loss, but are instead awarded on a “symbolic” or “moral” basis, damages are well suited to an award on a class-wide basis. The nature of the damages to be awarded offered support for the plaintiff’s argument that a class proceeding was the preferable proceeding for the resolution of common issues: Class Proceedings Act, 1992, s. 5(1)(d). Consequently, the presence of an intrusion upon seclusion claim, despite the uncertainty as to its legal viability, gave plaintiffs a leg up in the certification process and, as a result, in any settlement negotiations: see Winder, at para. 16; Babstock, at para. 21.

. Del Giudice v. Thompson

In Del Giudice v. Thompson (Ont CA, 2023) the Court of Appeal briefly considers R21 motions for striking pleadings, here in a class action certification appeal where CPA 5(1)(a) raises the same issue:

[8] Section 5(1) of the Class Proceedings Act requires a motion judge to certify a class proceeding if the pleadings satisfy its five statutory criteria. The motion judge, in his discretion, directed that the certification motion would proceed in two phases. The first phase was to determine the extent to which the appellants satisfied the first criterion under s. 5(1)(a): that the pleading discloses a cause of action. Only if the appellants were successful during this phase would the balance of the criteria be addressed in the second phase. No one contests that this process was available to the motion judge.

[9] As noted above, Phase 1 subsumed a r. 21 pleadings motion, meant to weed out claims that are doomed to fail before the expense of discovery has been incurred. On a r. 21 motion, evidence is neither required nor permitted. The facts as pleaded are assumed to be true unless ridiculous or incapable of proof: Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R. (3d) 1 (C.A.), at p. 6-7. Neither, however, are bald conclusory statements of fact or allegations of legal conclusions unsupported by material facts assumed to be true: Das v. George Weston Ltd., 2018 ONCA 1053, 43 E.T.R. (4th) 173, at para. 74; Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, 148 O.R. (3d) 115, at para. 11.