Civil Litigation - Striking Pleadings - R21 Determination of an Issue Before Trial
. 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:
 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.. Yan v. Hutchinson
 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”.
 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.
 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.
 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.
 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.
In Yan v. Hutchinson (Ont CA, 2023) the Court of Appeal considers basic law of R21.01(1)(b) inadequacy of pleadings:
 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. Shaulov v. Law Society of Ontario
 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),  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,  S.C.C.A. No. 514.
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:
 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.. FNF Enterprises Inc. v. Wag and Train Inc.
 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.
 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.
 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.
 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.
 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.
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:
 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,  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),  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.. 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:
 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,  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.. PMC York Properties Inc. v. Siudak
(i) The test under s. 5(1)(a) of the Class Proceedings Act, 1992
 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.
 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.
 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),  2 S.C.R. 959, at p. 980.
 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.
 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.
 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.] 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.”
 Babstock is consistent with prior authority from the Supreme Court of Canada. In Nelles v. Ontario, 1989 CanLII 77 (SCC),  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.
 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.
 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.
 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,  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.
 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.
 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.
 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.
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. Meekis v. Ontario
 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.
 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,  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.
 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.] 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.”
 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.
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:
 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),  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. Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company)
 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,  3 S.C.R. 45, at para. 17; Odhavji Estate v. Woodhouse, 2003 SCC 69,  3 S.C.R. 263, at paras. 14-15.
 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”.
 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.
In Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company) (Ont CA, 2021) the Court of Appeal considered a R21 motion to strike a claim on the basis that it was frivolous and vexatious:
 Rule 21.01(3)(d) provides:. Abbasbayli v. Fiera Foods Company
21.01(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that, When a party moves under r. 21.01(3)(d) to strike pleadings on the basis of res judicata or abuse of process, it bears the onus of satisfying the “plain and obvious” test. This test is more commonly applied under r. 21.01(1)(b) to strike out claims that disclose no reasonable cause of action, following the Supreme Court’s decision in Hunt v. T&N plc, 1990 CanLII 90 (SCC),  2 S.C.R. 959. However, this court has affirmed that the same test also applies under r. 21.01(3)(d). In Simone Estate v. Cheifetz (2005), 2005 CanLII 25094 (ON CA), 201 O.A.C. 120 (C.A.), at paras. 24-25, this court noted that on a r. 21 motion to strike pleadings on the basis of issue estoppel and abuse of process, the moving party “bears a heavy onus and must establish that it is ‘plain, obvious and beyond doubt’ that the plea could not succeed”. In Waterloo (City) v. Wolfraim, 2007 ONCA 732, 287 D.L.R. (4th) 65, at para. 3, this court re-iterated that “[a] court should invoke its authority to stay an action for abuse of process only in the clearest of cases”. Similarly, in Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 8, this court held that “[a] court only invokes its authority under rule 21.01(3)(d) … in the clearest of cases” (emphasis added).
(d) the action is frivolous or vexatious or is otherwise an abuse of process of the court
 Extrinsic evidence is permitted on a motion under r. 21.01(3)(d), and a motion judge may make factual determinations, including with respect to whether the facts in an underlying action were already litigated in earlier proceedings: Aba-Alkhail v. University of Ottawa, 2013 ONCA 633, 311 O.A.C. 89, at paras. 13-14, leave to appeal refused,  S.C.C.A. No. 491. The rule requires a motion judge to take “a hard look at the factual background, and especially the position and conduct of the parties”: Salasel, at para. 9.
 To summarize, Venmar had the onus of proving that it was plain and obvious that Fasco’s defences to Venmar’s claim for contribution and indemnity could not succeed, due to the application of res judicata or abuse of process.
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)
 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),  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,  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,  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,  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.
 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.