Civil Litigation - Striking Pleadings - Frivolous R25.11. 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. Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction)
 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 Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction) (Ont CA, 2021) the Court of Appeal dismissed a motion for leave to appeal under R25.11 (strikings of pleadings or other documents):
 There is no merit to Ms. Snowball’s motion for leave to appeal from the Divisional Court’s order refusing leave to appeal and it is therefore frivolous. As a general rule, there is no ability to appeal from an order of an intermediate court refusing leave to appeal, unless the judge of that court “mistakenly declined jurisdiction”: Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 1996 CanLII 413 (ON CA), 135 D.L.R. (4th) 471 (Ont. C.A.), at pp. 483-84; Denison Mines Limited v. Ontario Hydro (2001), 2001 CanLII 5681 (ON CA), 56 O.R. (3d) 181 (C.A.), at paras. 4-5, 8. The Divisional Court did not “mistakenly declin[e] jurisdiction” when it determined the leave motion. The Divisional Court was under no obligation to provide reasons for refusing leave to appeal: 2265535 Ontario Inc. v. Vijayant Sood, 2017 ONSC 4738 (Div. Ct.), at para. 1.. Abbasbayli v. Fiera Foods Company
 Accordingly, the Regional Municipality of Halton’s motion to strike Ms. Snowball’s Notice of Motion for leave to appeal is granted. ....
In Abbasbayli v. Fiera Foods Company (Ont CA, 2021) the Court of Appeal considers RCP R25.11 [frivolous and vexatious]:
 I turn to the assertion that para. 40 contains irrelevant facts and inflammatory attacks – allegations of wrongdoing that are inserted only for colour and to impugn the integrity of the corporate respondents. I agree that it is appropriate to strike under r. 25.11(b) allegations of wrongdoing or illegal conduct of a party which have no relevance to a claim or defence: see e.g. Foodcor Services Corp. v. Seven-Up Canada Inc.,  O.J. No. 2576 (Gen. Div.), at para. 32; Ontario Consumers Home Services Inc. v. EnerCare Inc., 2014 ONSC 4154, at paras. 45-47; Transamerica Occidental Life Insurance Co. v. Toronto-Dominion Bank,  O.J. No. 1 (Gen. Div.), at para. 12. ..... AMT Finance Inc. v. LaFontaine
In AMT Finance Inc. v. LaFontaine (Ont CA, 2020) the Court of Appeal holds that a R25.11 motion [to strike pleadings as frivolous and vexatious] is not appropriate to strike paragraphs of the Notice of Appeal. The proper procedure is a motion to quash:
 The respondent seeks an order under Rule 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, striking a number of paragraphs of the Notice of Appeal as vexatious and an abuse of process of the court, as they purport to appeal orders that were either not appealable to this court, or where no timely appeal was taken, or where an appeal was taken and dismissed for failure to perfect.
 Rule 25.11 allows the court to strike a “pleading or other document” that is “scandalous, frivolous or vexatious”, or “an abuse of the process of the court.” While it could be argued that a notice of appeal falls within the scope of “other document”, in my view, this motion is, in effect, a motion to quash part of the appeal, and therefore properly lies to a panel of this court in accordance with ss. 7(2)-(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43; Rule 61.16(2.2) of the Rules of Civil Procedure; and the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, at s. 7.2.1.
 What the respondent is seeking to do is to have portions of the Notice of Appeal quashed as vexatious or an abuse of process on the basis that they seek to appeal out of time orders that were not appealed, were appealed but dismissed, or orders that were not appealable to this court.
 In Simpson v. Chartered Professional Accountants of Ontario, 2016 ONCA 806, 5 C.P.C. (8th) 280, this court considered the difference between Rule 2.1 and motions to quash, stating at para. 43:
Rule 2.1 is meant to provide a streamlined procedure for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process. However, the rule is not intended or designed to supplant the established procedural mechanism of bringing a motion to quash an appeal for want of jurisdiction or for want of merit. [Emphasis added.] Similarly, this motion under Rule 25.11 is, in effect, a motion to quash part of the appeal. Where that is the effect of the order being sought, the motion should be brought before a panel of this court, using the procedure prescribed in s. 7.2 of the Practice Direction. This motion is therefore dismissed with costs fixed at $1000 inclusive of disbursements and HST.