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Civil Litigation Dicta - Pleadings, Narrowing (by any Party) - Striking Pleadings [R21.01(1)(b)] - General
COMMENT 1
While R21 and R25 motions are most commonly used in actions (ie. lawsuits), they are also available to applications, including judicial review applications by virtue of R14.09:An originating process that is not a pleading may be struck out or amended in the same manner as a pleading. See Civil Litigation Dicta - Applications - Striking.
COMMENT 2
This is the common 'no reasonable cause of action or defence' ground of striking pleadings (aka 'non-suit'), also used as a criteria in class action certifications.
CASES
. Rivard v. Kingston Police [general]
In Rivard v. Kingston Police (Div Court, 2023) the Divisional Court considered an appeal (with leave) of an interlocutory order dismissing a "motion to strike out an amended statement of claim" under R21.01(1)(b) ['no reasonable cause of action or defence'] and R25.11 ['Striking out a Pleading or Other Document'].
Here the court considers the law of striking pleadings, here under R21.01(1)(b) ['no reasonable cause of action or defence']:The Test Under Rule 21.01(1)(b)
[28] The test for the court to apply under rules 21.01(1)(b) and 25.11 has been accurately stated by the court in Dawson v. Baker, 2017 ONSC 6477, at para. 46:The “plain and obvious” test under Rule 21.01(1)(b) sets out a low threshold. The court considers whether the necessary elements of a cause of action are pleaded, assuming the facts as alleged are true. Consequently, if the allegations do not give rise to a recognized cause of action or if the claim fails to plead the necessary elements of an otherwise recognized cause of action, it will be struck under Rule 21.01(1)(b). [Citations omitted. Emphasis in original.] [29] The court will only strike out a claim on the basis that it discloses no reasonable cause of action in the clearest of cases where it is plain and obvious that the case cannot succeed: see Temilini v. Ontario Provincial Police (Commissioner) (1990), 1990 CanLII 7000 (ON CA), 73 O.R. (2d) 664 (C.A.).
[30] A defendant faced with a pleading which attains this “low threshold” is not left without recourse. It retains the power to deny the allegations in its statement of defence. The plaintiff always bears the onus of proving the allegations it advances. A defendant may seek and then move for particulars under rule 25.10. A defendant is entitled to documentary disclosure in an affidavit of documents. A defendant can serve a request to admit certain facts. A defendant enjoys extensive rights of discovery which allows it to explore the allegations, elicit evidence and demand undertakings. Finally, a defendant retains the option of moving for summary judgment, a process where evidence is admissible, where the plaintiff will be obliged to put its best foot forward and where the test will be whether there is a genuine issue requiring a trial of an issue.
[31] To strike a pleading because the facts as alleged are not encased in rich enough detail would unfairly hamper many wronged plaintiffs from ever getting out of the starter’s box. This is especially the case where, as here, much of the evidence to be elicited in support of the allegations against the Chief and the Board (internal policies, investigations, officer records, training manuals, course materials) are likely in the exclusive possession of the Defendants. That “evidence” may not be routinely available for public viewing and may not be divulged to the Plaintiff prior to the discovery process. It is hardly fair to brand a broadly worded allegation as a mere fishing expedition or dismiss it as bald and conclusory when the prospective tortfeasor has exclusive possession over the documents and evidence which would support the pleading. In the absence of those documents and that evidence, it would be exceedingly unfair to expect a plaintiff to advance anything but broadly stated allegations.
[32] At the same time, pleading irrelevant, frivolous, or corollary facts is always improper because such allegations cannot be said to be material to the issues framed by the rest of the pleading which advances a viable cause of action. In an occupier’s liability case where it is alleged that the plaintiff slipped on ice outside a shopkeeper’s front door, it would be inappropriate to state that the shopkeeper sported a beard or enjoyed badminton. However, it is entirely appropriate to plead that the shopkeeper failed to salt or sand a slippery portion of an entranceway, even though when such an allegation is made, the plaintiff may not be in possession of any evidence or particulars to support that allegation. That allegation is allowed in a pleading because: (i) it is relevant to the issues of standard of care and liability; (ii) it forms part of the factual allegations that the plaintiff has identified it will prove; (iii) it fairly signals to the defendant and to the court what the plaintiff intends to prove in evidence; (iv) it serves a basis for an examining party to ask questions and to seek undertakings; (v) it is a material fact, proof of which would tend to establish the liability of the defendant; and (vi) it allows the defendant to pose and answer the Burns question, “What do you say I did that caused you, the plaintiff, harm, and when did I do it?”
[33] The material facts pleaded must also disclose a recognizable cause of action. As applied to a tort claim such as the present claim, the Court of Appeal for Ontario, at para. 19 of Burns, emphasized that rule 25.06(1), “requires a plaintiff to set out the material facts specific to each defendant that support a claim against the defendant that it owed a duty of care to the plaintiff, and by reason of specified conduct, breached that duty and caused injury or harm to the plaintiff.” . FNF Enterprises Inc. v. Wag and Train Inc.
In FNF Enterprises Inc. v. Wag and Train Inc. (Ont CA, 2023) the Court of Appeal sets out the R21.01(1)(b) ("no reasonable cause of action or defence") test:[12] The proper approach to a r. 21.01(1)(b) motion is also well settled. On such a motion, the facts asserted in the statement of claim are taken to be true unless patently incapable of proof: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 22. The statement of claim is to be read generously: Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at p. 451. The test to be applied “is whether it is plain and obvious, assuming the facts pleaded to be true, that each of the plaintiffs’ pleaded claims disclose no reasonable cause of action. Simply stated, if a claim has no reasonable prospect of success, it should not be allowed to proceed to trial”: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, 447 D.L.R. (4th) 543, at para. 14. . PMC York Properties Inc. v. Siudak
In PMC York Properties Inc. v. Siudak (Ont CA, 2022) the Court of Appeal considered principles for motions to strike, in particular the role of pleadings:(2) Correct approach to motions to strike
[30] Before I turn to examine the Divisional Court’s decision and the particular pleadings of defamation and civil conspiracy, it is helpful to review the principles governing the correct approach for a court to take in general on a motion to strike pleadings, whether under rule 21 or rule 25. It is beyond well-established that the bar for striking a pleading is very high.
[31] In the case of a claim, the question is whether the action has no reasonable prospect of success or whether it is plain and obvious that the action cannot succeed. This high standard applies to determinations of fact, law, and mixed fact and law. The facts pleaded are treated as true unless they are manifestly incapable of being proven. And the pleadings should be read generously, accommodating any drafting deficiencies because cases should be determined on their merits based on the evidence presented before judges at trial. The court should always consider whether the deficiency can be addressed through an amendment to the pleadings and leave to amend should be denied only in the clearest of cases. See: Hunt, at p. 980; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 17, 22; Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, 447 D.L.R. (4th) 543, at paras. 87-88; Tran v. University of Western Ontario, 2015 ONCA 295, at paras. 16, 26-27; Abbasbayli v. Fiera Foods Company, 2021 ONCA 95, at para. 20.
[32] The correct approach was recently reiterated and summarized by the Supreme Court in Atlantic, at para. 90, as follows:The threshold to strike is therefore high. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial. The correct posture for the Court to adopt is to consider whether the pleadings, as they stand or may reasonably be amended, disclose a question that is not doomed to fail. [Citations omitted.] [33] The motivating rationale behind this high standard reflects the liberal construction of rules and pleadings that underlies the Rules of Civil Procedure and the requisite generous approach to pleadings in general, in order, as rule 1.04(1) provides, to “secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”
[34] Pleadings are very important. They frame the proceedings and the case that must be met. However, long gone are the days where proceedings could be terminated at the early pleadings stage on mere technicalities that can be cured by amendment unless it would result in non compensable prejudice to the opposing party or the administration of justice. Motions to strike can certainly serve a useful purpose at early stages of a proceeding to weed out clearly untenable causes of action that have no chance of success: Imperial Tobacco, at para. 19. But in circumstances where parties are quibbling over whether a known cause of action has been pleaded with sufficient particularity, injudicious use of motions to strike inevitably lead to proceedings becoming mired down, as here, in technical pleadings disagreements that cause unnecessary delay and expense, rather than the adjudication of the dispute on the merits.
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