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Civil Litigation Dicta - R21 Determination of an Issue Before Trial (2)

. Cashin Mortgages Inc. (Verico Cashin Mortgages) v. 2511311 Ontario Ltd. (Mortgages Alliance – Main Street Mortgages)

In Cashin Mortgages Inc. (Verico Cashin Mortgages) v. 2511311 Ontario Ltd. (Mortgages Alliance – Main Street Mortgages) (Ont CA, 2023) the Court of Appeal considers the 'another proceeding pending' and 'abuse of process' issues as grounds of appeal, here from R21.01(3)(c) and (d) ['Determination of an Issue Before Trial']:
[17] Both r. 21.01(3)(c) and (d) invoke the doctrine of abuse of process. The doctrine of abuse of process has been applied to prevent a multiplicity of proceedings or the re-litigation of an issue, such as in the commencement of another proceeding that replicates the same or similar issues and is against some or all the same parties. Various policy grounds are cited in the application of the doctrine of abuse of process: to ensure that no one should be “twice vexed by the same cause”, to “uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 38 citing Donald J. Lange, The Doctrine of Res Judicata in Canada (Markham: Butterworths, 2000). It is a flexible doctrine that “evokes the ‘public interest in a fair and just trial process and the proper administration of justice’”, and, as a result, “engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute”: Behn Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at paras. 39 and 40, citing R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at p. 1007, per McLachlin J. (dissenting) and Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A. (dissenting).

[18] In Birdseye Security Inc. v. Milosevic, 2020 ONCA 355, at paras. 15-16, this court reviewed the analytical framework to be applied in the court’s exercise of its discretion when considering whether an action should be dismissed or stayed under r. 21.01(3)(c) as an abuse of process:
[15] The determination of whether a stay of proceedings should be granted because another proceeding is pending between the same parties involves an exercise of discretion, taking into consideration the circumstances of the particular case. The moving party must demonstrate that the continuation of the action would cause it substantial prejudice or injustice (beyond inconvenience and expense) because it would be oppressive or vexatious or would otherwise be an abuse of the process of the court, and that the stay would not cause an injustice to the responding party: Farris v. Staubach Ontario Inc. (2004), 2004 CanLII 11325 (ON SC), 32 C.C.E.L. (3d) 265 (Ont. S.C.), at para. 15. Factors relevant to prejudice include: the likelihood and effect of the two matters proceeding in tandem, the possibility and effect of different results, the potential for double recovery, and the effect of possible delay: Farris, at para.16

[16] The fact that another proceeding is pending between the same parties in respect of the same subject matter does not automatically lead to an order dismissing or staying the claim. Rather, the order is discretionary and the judge hearing the motion must be satisfied that the stay or dismissal is warranted in the particular circumstances of the case. While a multiplicity of proceedings may constitute an abuse of process which warrants an order staying or dismissing a proceeding (see e.g., Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.), 2011 ONCA 125, 274 O.A.C. 229, at paras. 36, 46), that is not necessarily always the case. All of the circumstances must be considered to determine whether, in the interests of justice, a stay or dismissal should be granted. [Emphasis added.]
. Cashin Mortgages Inc. (Verico Cashin Mortgages) v. 2511311 Ontario Ltd. (Mortgages Alliance – Main Street Mortgages)

In Cashin Mortgages Inc. (Verico Cashin Mortgages) v. 2511311 Ontario Ltd. (Mortgages Alliance – Main Street Mortgages) (Ont CA, 2023) the Court of Appeal considers a R21.01(3)(b) ['Determination of an Issue Before Trial - Capacity'] ground of appeal:
[1] The appellants appeal the dismissal of their motion under r. 21.01(3)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, in which they alleged that the respondent lacked the legal capacity to bring its action; ...


[9] The appellants argue that the concept of legal capacity for the purposes of r. 21.01(3)(b) comprises the question of a party’s legal status to sue and be sued, as well as the question of a party’s standing to pursue a cause of action: see e.g., Western Delta Inc. v. Zurich Indemnity Company of Canada, 1999 CanLII 2386 (Ont. C.A.), at para. 4, and Goldentuler v. Simmons Dasilva LLP, 2021 ONCA 219, at para. 13. The appellants do not dispute Cashin is an active corporation that can sue and be sued. They contest that Cashin has standing to bring a claim with respect to its claimed ownership of the Greenbrix name.

[10] In our view, the appellants’ argument conflates the question of legal standing with the question of whether or not Cashin’s claim to ownership has any merit. As the motion judge noted, the appellants did not bring a motion to strike Cashin’s statement of claim in the Milton Action as disclosing no reasonable cause of action, nor a motion for summary judgment, whereby the court could possibly adjudicate the merits of the Milton Action. Whether or not Cashin ultimately prevails on its assertion that it owns the Greenbrix name remains to be determined. This is not a determination that can be made on this motion or record. We therefore dismiss this ground of appeal.
. Rivard v. Kingston Police

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.”


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Last modified: 15-02-24
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