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Civil Litigation - Striking Pleadings - Delay [R21.02]

. The Dominion of Canada General Insurance Company v. Nelson

In The Dominion of Canada General Insurance Company v. Nelson (Div Court, 2023) the Divisional Court considered whether R21.02 [R21 addresses early determination to question of law and striking pleadings] allowed dismissal of a R21 motion for delay alone:
[16] On the hearing of the Rule 21 motion, the Respondent raised the issue of alleged delay in the bringing of the motion and submitted that it should be dismissed on that basis alone. In so doing, the Respondent relied on Rule 21.02 which states as follows:
A motion under rule 21.01 shall be made promptly and a failure to do so may be taken into account by the court in awarding costs. R.R.O. 1990, Reg. 194, r. 21.02.

[43] Rule 21.02 does not provide any express basis to refuse to hear a Rule 21 motion due to delay and to dismiss it instead. In my opinion, this motion ought to have been heard on its merits and the proceedings stayed on the basis of lack of jurisdiction.

[44] Even if Rule 21.02 is correctly considered in certain cases as a proper basis upon which to decline to hear or to dismiss a Rule 21 motion for delay, the decision in Schellenberg, supra, relied upon by the motion judge in so doing is distinguishable on its facts. In Schellenberg, a Rule 21 motion had been brought more than 3 years after the commencement of the proceedings, after the action had been set down for trial and 6 weeks before the date of commencement of the trial. In his decision, the motion judge held that Rule 21.02 provided grounds to dismiss the motion for delay, despite the absence of such wording in the Rule. In the present case, no discoveries had occurred in the year following commencement of the action and the action had not yet been placed on the list for trial.

[45] Having said that, I also note that the interpretation in Schellenberg is at odds with the decision of the Divisional Court in Toronto-Dominion Bank v. Kopman, 2000 CanLII 29061 (ON SCDC) in which the panel dealt with a Rule 21 motion that had not been brought until the first round of discoveries in the action had been completed. The majority of the panel interpreted the purpose of Rule 21.02 as being related solely to the disposition of costs following such a motion, contemplating that a successful moving party may be deprived of an order of costs or even be required to pay the other side’s costs if the motion is not brought in a suitably timely matter. The majority decision stated (at paras. 11 and 12):
Rule 21.02 reads: “A motion under rule 21.02 [to strike out a pleading on the ground that it discloses no reasonable cause of action] shall be made promptly and a failure to do so may be taken into account by the court in awarding costs."


[11] Rule 21.02 seems to indicate that the penalty for failing to move promptly may in some cases be an award of costs to compensate for delay…


[13] It is in the interest of the court to avoid unnecessary time being spent by judges and masters on pleadings that are invalid, that is to say that raise no cause of action. Accordingly the matter of delay should not deter us from holding that the pleadings of abuse of process and intentional infliction of mental suffering disclose no cause of action.
[46] It remains arguable that Rule 21.02 may allow a court to dismiss a motion when the delay in bringing it has been egregious. In Toronto-Dominion Bank v. Kopman, Southey J. in dissent on the issue indicated that he would have dismissed the appeal on the merits, but stated as to effect of delay:
While rule 21.02 provides that, where a motion is brought other than promptly, the court may take account of that fact in awarding costs, there may be merit in the proposition that, where the moving party's delay is egregious, the motion can be dismissed on that ground.
[47] However, there is a strong line of authority following the decision of Williams Beauty Products v. State Farm Fire and Casualty Co. (2001), 31 C.C.L.I. (3d) 126 wherein the issue of delay is limited to the question of costs only. The history of the jurisprudence was noted by MacDonnell, J. in Project 360 Investments Limited (Sound Emporium Nightclub) v. Toronto Police Services Board, 2009 CanLII 36380 (ON SC) which involved a motion to strike a pleading:
The parties have taken me through the cases that have considered the sanction to be imposed for a failure to comply with Rule 21.02. I acknowledge that in some circumstances, courts have held that a failure to move promptly should lead to a refusal to hear the motion: see, e.g., Fleet Street Financial Corp. v. Levinson (2003), 31 C.P.C. (5th) 145 (Ont. Sup. Ct.). Other courts have held that delay is not a basis for dismissing a motion to strike but rather a factor to be taken into account in awarding costs: see, e.g., Mujagic v. State Farm Automobile Insurance Co., 2009 CanLII 9424 (ON SC), [2009] O.J. No. 889 (Sup. Ct.); North York Academy of Golf and Practice Range Inc. v. Toronto (City), [2008] O.J. No. 4128.
[48] There is greater justification for adopting the approach of limiting the impact of delay to the disposition of costs in motions brought under Rule 21.01(3)(a) such as this one. Rule 21.01(3)(a) does not merely determine a discrete issue of law or strike out a pleading for failure to disclose a cause of action, but challenges the very jurisdiction of the court to hear and determine the matter.

[49] In Brillon v. General Dynamics Land Systems - Canada, 2018 ONSC 7442 (CanLII), the Court considered the applicability of Rule 21.02 in the context of a motion that was heard 7 years following the exchange of pleadings. The issue was whether the Court had jurisdiction over the dispute or whether the matter should be determined by a labour arbitrator. In holding that Section 21.02 was not a bar to the motion, the court stated:
At issue in the present case is whether the court or labour arbitrator has jurisdiction over the subject matter under the Labours Relations Act s. 48(1). Where there is a law such as s. 48(1) which deals with the court’s jurisdiction, I would be surprised if, as the plaintiff’s factum seems to suggest, a law may be circumvented or ignored because a party conducts itself contrary to it. I do not agree with the argument that the defendant is, in the face of s. 48(1), able to attorn to this court’s jurisdiction based on its conduct in this litigation. Whether the case should proceed in this court is an issue to be determined on other grounds. The delay in bringing this motion is a matter to be dealt with through costs, according to Rule 21.02, which states:
21.02 A motion under rule 21.01 shall be made promptly and a failure to do so may be taken into account by the court in awarding costs. R.R.O. 1990, Reg. 194, r. 21.02.
Indeed, in submissions, plaintiff’s counsel agreed that delay in and of itself in bringing this motion does not vest jurisdiction in the court given the wording of the Labour Relations Act. He agreed that, if motions challenging jurisdiction are not brought promptly, the remedy is in costs. Consequently, I find that the delay in bringing this motion does not vest jurisdiction in the court given the wording of the Labour Relations Act, s. 48(1).


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Last modified: 19-02-23
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