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Civil Litigation Dicta - Pleadings, Narrowing (by any Party) - Striking Pleadings [R21.01(1)(b)] - No Cause of Action/Defence. Rivard v. Ontario
In Rivard v. Ontario (Ont CA, 2025) the Ontario Court of Appeal considered a police/police board appeal, this from a Divisional Court interlocutory appeal regarding R21 and R25.11 pleadings motions, this in a negligence lawsuit alleging serious assault during an arrest.
Here the court considered the test for an R21.01(1)(b) ['To Any Party on a Question of Law'] motion to "strike out a pleading on the ground that it discloses no reasonable cause of action or defence":[22] A claim should only be struck under r. 21.01(1)(b) if it is plain and obvious that there is no reasonable prospect it can succeed: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980; Guergis v. Novak, 2013 ONCA 449, 116 O.R. (3d) 280, at para. 34.; Frank v. Legate, 2015 ONCA 631, 390 D.L.R. (4th) 39, at para. 36. A court must assume that all facts pleaded in the statement of claim are true, unless they are patently ridiculous or incapable of proof: Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at pp. 486-87; Hunt, at pp. 977-979; McCreight, at para. 29; Connor v. Scotia Capital Inc., 2018 ONCA 73, at para. 3. The court must read the statement of claim as generously as possible, with a view to accommodating any inadequacies in the pleading: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 21-22. A claim should not be struck just because it is novel, or because the underlying law is unsettled, or because the plaintiff’s odds of success seem slim: Hunt, at pp. 979-80.
[23] The appellants’ argument on the tenability of Mr. Rivard’s cause of action against the Chief involves a “purely legal analysis” and so engages a standard of review of correctness: Frank, at para. 35. Should I accept the appellants’ argument on tenability, I must find that the Divisional Court erred in law, the Chief’s appeal should be allowed, and the claim against him struck. . Meekis v. Ontario
In Meekis v. Ontario (Ont CA, 2021) the Court of Appeal set out the test for R21.01(1)(b) motions to strike for no reasonable cause of action:[16] I draw the facts below from the appellants’ amended statement of claim. They are assumed to be true for the purposes of the r. 21 motion, unless they are patently ridiculous or incapable of proof: see, Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980; Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R. (3d) 1 (C.A.), at p. 6; Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, 148 O.R. (3d) 115, at para. 11, leave to appeal to S.C.C. refused, 38915 (December 10, 2020). However, as this court affirmed in Darmar Farms, at para. 11, “bald conclusory statements of fact” and “allegations of legal conclusions unsupported by material facts” are not assumed to be true
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[62] On a motion to strike for failure to disclose a reasonable cause of action under r. 21.01(1)(b), the well-established test is whether the claim has “no reasonable prospect of success”: Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526, at para. 15; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at paras. 14-15.
[63] In Imperial Tobacco, at para. 21, the Supreme Court emphasized that the judicial approach on motions to strike “must be generous”, erring on the side of allowing novel but arguable claims to proceed to trial, since “actions that yesterday were deemed hopeless may tomorrow succeed”.
[64] On appeal from an order made under r. 21.01(1)(b), the applicable standard of review is correctness: Grand River, at para. 18; The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, 150 O.R. (3d) 449, at para. 37. . Fernandez Leon v. Bayer Inc.
In Fernandez Leon v. Bayer Inc. (Ont CA, 2023) the Court of Appeal considered (and granted) an appeal of a motion order that struck product liability pleadings [under R21.01(1)(b)] without leave to amend:[3] Bayer’s motion was brought under r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, asserting that the statement of claim did not disclose a cause of action. The motion judge agreed, concluding that there were substantial foundational deficiencies in the appellants’ claim that could not be cured by simply amending the pleading.
[4] Irrespective of the deficiencies that she identified in the appellants’ pleading, the motion judge erred in refusing to grant leave to amend the statement of claim. She did not advert to or apply the test for amendment of pleadings articulated by this court. Instead, the motion judge concluded that there was “no benefit in permitting the [appellants] to try and find some tenable basis in fact for a claim against Bayer when none [had] been found by them to date”.
[5] Leave to amend a statement of claim should be denied only in the clearest of cases, when it is plain and obvious there is no tenable cause of action, the proposed pleading is scandalous, frivolous or vexatious, or there is non-compensable prejudice to the defendants: see McHale v. Lewis, 2018 ONCA 1048, at paras. 6 and 22; Klassen v. Beausoleil, 2019 ONCA 407, 34 C.P.C. (8th) 180, at para. 25. This test applies even where it is determined that the statement of claim, as pleaded, should be struck: see Burns v. RBC Life Insurance Company, 2020 ONCA 347, 151 O.R. (3d) 209; Tran v. University of Western Ontario, 2015 ONCA 295. The fact that allegations are bald and lack supporting material facts is not itself a reason for refusing leave to amend: Miguna v. Ontario (Attorney General) (2005), 2005 CanLII 46385 (ON CA), 205 O.A.C. 257, at para. 22.
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[8] The test for striking pleadings for not disclosing a reasonable cause of action is stringent, and the moving party must satisfy a very high threshold in order to succeed. This may occur where the allegations do not fall within a cause of action known to law, or because the statement of claim fails to plead all the essential elements of a recognized cause of action: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 10. Unless it is “plain and obvious” that there is no chance of success, a claim, even a novel one, ought to be allowed to proceed. The pleading must be read generously, erring on the side of permitting an arguable claim to proceed to trial: see Rausch v. Pickering (City), 2013 ONCA 740, 369 D.L.R. (4th) 691, at para. 34.
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[11] In our view the proposed amendments plead the essential elements of the claims for negligent design and manufacture. The proposed amendments plead the material facts that are required to support the pleaded causes of action. That is, they meet the low threshold for pleading a cause of action.
[12] We do not agree with Bayer that in every case where a plaintiff alleges negligence in the design and manufacture of a product, the statement of claim must be struck unless it identifies the specific defect in the product that caused the injury. The particulars of a specific defect are not in our view elements of the tort that are always required to be pleaded before the claim discloses a cause of action. To identify a specific manufacturing or design defect in every case would place too onerous a burden on a plaintiff at the stage of initiating a proceeding in a product liability action. In this case, involving a medical device that is alleged to have caused injury after it was implanted for its intended use, the appellants meet the requirement to plead a cause of action in negligence, even if they cannot at this time identify a specific defect in the product’s manufacture or design. . Yan v. Hutchinson
In Yan v. Hutchinson (Ont CA, 2023) the Court of Appeal considers basic law of R21.01(1)(b) inadequacy of pleadings:[12] We begin with a review of some of the governing principles. First, the motion judge applied the correct legal test on a r. 21.01(1)(b) motion to strike citing the following well-established principles from Cottage Advisors of Canada v. Prince Edward Vacant Land, 2020 ONSC 6445, at para. 16. A claim will be found legally insufficient if its allegations “do not give rise to a recognized cause of action or it fails to plead the necessary elements of an otherwise recognized cause of action … [A] plaintiff must, at minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. Vague allegations that make it impossible for [the defendant] to reply should be struck”: Aristocrat Restaurants Ltd. v. Ontario, 2003 CarswellOnt 5574, at paras. 18-19. . Shaulov v. Law Society of Ontario
In Shaulov v. Law Society of Ontario (Ont CA, 2023) the Court of Appeal set out the basics of a R21.01(1)(b) ["disclosing no reasonable cause of action"] motion:(1) General principles applied by the motions judge
[11] The motion judge referenced the guiding principles on a motion to strike under r. 21.01(1)(b). She acknowledged the requirements on a motion to strike to read the appellant’s statement of claim generously and accept the pleaded facts as true for the purpose of the motion, excepting bald conclusory statements of fact, unsupported by material facts. She understood that the appellant’s statement of claim should not be struck out unless it was plain and obvious that it disclosed no reasonable cause of action and had no reasonable prospect of success. She also recognized that leave to amend should only be denied in the clearest of cases where the appellant could not allege further material facts to support his allegations. See Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980; Tran v. University of Western Ontario, 2015 ONCA 295, at paras. 16, 26; and Eliopoulos Estate v. Ontario (Minister of Health and Long-Term Care) (2006), 2006 CanLII 37121 (ON CA), 82 O.R. (3d) 321 (C.A.), at para. 8, leave to appeal refused, [2006] S.C.C.A. No. 514. . Kudrocova v. Waterloo Region District School Board
In Kudrocova v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considered an appeal from a dismissal of a motion to strike pleadings under R21.01(1)(b) [SS: "no reasonable cause of action"] and 21.01(3)(d) [SS: "frivolous or vexatious "]. The underlying action was a claim by a mother against a school board and related parties for "(1) misfeasance of public office, (2) intentional infliction of mental suffering, and (3) breach of her s. 7 rights under the Canadian Charter of Rights and Freedom.":[8] The issue is whether the motion judge erred in law in his finding that it was not “plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action”: McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 39; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17. This requires an examination of the motion judge’s reasons and of the pleading itself.
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Should the pleading be struck out?
[13] The Court of Appeal has recently restated the long-accepted approach to motions under r. 21, noting in PMC York Properties Inc. v. Siudak, 2022 ONCA 635, 473 D.L.R. (4th) 136, at para. 31, that the “plain and obvious” test is a “high standard”, the facts pleaded are assumed to be true, 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.” As Karakatsanis J. stated in Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, [2020] 2 S.C.R. 420, at para. 90, “[w]here a reasonable prospect of success exists, the matter should be allowed to proceed to trial.” On the other hand, “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)”: Dawson v. Baker, 2017 ONSC 6477 (S.C.), at para. 46
[14] As the standard of review is correctness, and this Court is in the same position as a motion judge to assess the adequacy of the pleading, it is appropriate for this Court to determine the motion. In this case I agree with the motion judge that the Respondent’s chances of ultimate success are “minimal”, but go further, and conclude that it is “plain and obvious” that the claim discloses no reasonable cause of action. I am also satisfied that portions of the claim are vexatious and an abuse of process. . The Catalyst Capital Group Inc. v. Dundee Kilmer
In The Catalyst Capital Group Inc. v. Dundee Kilmer (Ont CA, 2022) the Court of Appeal commented simply on striking claims:[12] The law governing the appeal is not in dispute. Pursuant to r. 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a claim will be struck only where it is plain and obvious that the pleaded facts, taken as true, do not disclose a reasonable cause of action. In making the determination, the motion judge is required to read the claim generously, making allowances for drafting inadequacies: Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R. (3d) 1 (C.A.), at p. 7. . Potis Holdings Ltd. v. The Law Society of Upper Canada
In Potis Holdings Ltd. v. The Law Society of Upper Canada (Ont CA, 2019) the Court of Appeal stated a basic principle of R21 determinations:[18] The essential principles governing a motion to strike out a pleading under r. 21.01(1)(b) as disclosing no reasonable cause of action are well known. A pleading will be struck out if, assuming the facts pleaded to be true, it is plain and obvious that it discloses no reasonable cause action; that is, where it has no reasonable prospect of success: R. v. Imperial Tobacco, 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980; and McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 39. . Asghar v. Toronto Police Services Board
In Asghar v. Toronto Police Services Board (Ont CA, 2019) the Court of Appeal sets out some principles of R21 motions to strike pleadings:The governing principles
[8] In a motion to strike a pleading as disclosing no reasonable cause of action under r. 21.01(1)(b), the moving party must show that it is “plain, obvious and beyond doubt that the claim will not succeed” at trial: MacKinnon v. Ontario Municipal Employees Retirement Board, 2007 ONCA 874, 88 O.R. (3d) 269, at para. 19. The court added, at para. 20, that “[t]he statement of claim must be read generously to allow for drafting deficiencies” and “[i]f the claim has some chance of success, it must be permitted to proceed.” The court concluded, at para. 21, that “the threshold for sustaining a pleading on a Rule 21 motion is not high.” See also Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 1990 CanLII 6611 (ON SC), 74 O.R. (2d) 225 (Div. Ct.), leave to appeal refused, 1991 CanLII 7565 (ON CA), [1991] O.J. No. 3673 (C.A.). . Das v. George Weston Limited
In Das v. George Weston Limited (Ont CA, 2018), an international tort case, the Court of Appeal 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. . Koohestani v. Mahmood [striking defence]
In Koohestani v. Mahmood (Ont CA, 2015) the Court of Appeal made the following useful comments on principles to be applied by the court when striking a party's defence:[54] Notwithstanding the legitimate concerns raised before Spence J., my difficulty with his decision to strike the appellants’ defence is that he failed to apply the principles relevant to such a request, particularly those set out by this court in Bell ExpressVu Limited Partnership v. Corkery, 2009 ONCA 85 (CanLII), 94 O.R. (3d) 614. In Bell ExpressVu, at para. 35, the majority identified striking out a defence as a severe remedy and made it clear that it should generally not be imposed as a remedy of first resort. The defaulting party should, at least, be provided with an opportunity to cure the default.
[55] Such was not done in this case.
[56] This failure is of particular note given the order of Roberts J. was not finally settled until November 6, 2013, the day before the motion to strike. The record suggests to me that it was the appellants’ recusal motion and on-going attempts to re-argue the merits that led to such profound delay in settling the terms of the order. Nonetheless, the November 6, 2013, endorsement indicates that on that day a non-trivial change was made to the December 12, 2012 order – namely the removal of any reference to declaratory relief. The respondent has not disputed that the time for appealing the order continued to run when the parties appeared before Spence J. Given the on-going willingness of Roberts J. to hear further submissions and alter the order into November 2013, and the extant right to appeal that order when the motion was argued before Spence J., it is possible that the appellants did not fully appreciate the peril of not paying the damages and costs ordered by Roberts J.
[57] In addition to the primary principle identified in Bell ExpressVu, - that striking out a defence should not be the remedy of first resort, additional factors should be taken into account in deciding whether to strike a defence for failure to comply with court orders.
[58] First, the action should be examined with particular attention to the merits of the defence: Bell ExpressVu, at para 36. The pleading and any evidence relevant to the defence may demonstrate a strong defence supporting the conclusion that the interests of justice warranted finding another way to sanction the misconduct. On the other hand, a blatantly unmeritorious defence may give rise to the inference that the defendant’s refusal to comply with a court order is part of a deliberate strategy to delay a decision on the merits – conduct that may justify the imposition of a more severe sanction.
[59] In my view, it cannot be said that the appellants’ defence in this case is obviously without merit.
[60] Second, the context of the misconduct relied upon is relevant to the determination of a response that is not only proportional to the severity of the misconduct but also in keeping with the overarching objectives that guide the application of the rules; namely, that set out in r. 1.04 that the rules should be interpreted to secure the just determination of each civil proceeding on its merits.
[61] In this case, the misconduct that led to the striking of the defence took place in the context of a peripheral dispute involving a relatively small amount (just over $15,000) in relation to the amount in issue, at least as pleaded (over $680,000). See Tarion Warranty Corp. v. 1486448 Ontario Inc., 2012 ONCA 288 (CanLII), 2012 CarswellOnt 5355.
[62] Third, in some cases the record may indicate that it was counsel for the defaulting parties rather than the parties themselves who should bear primary responsibility for the misconduct in issue. As stated by Sharpe J.A., writing for the court in Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores, 2007 ONCA 695 (CanLII), 87 O.R. (3d) 660, at para. 28, “The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor”.
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