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Civil Litigation - Striking Pleadings - Leave to Amend. Del Giudice v. Thompson
In Del Giudice v. Thompson (Ont CA, 2023) the Court of Appeal considered whether various causes of action for data breach claims were made out, here in determining whether causes of action where pleaded in class certification purposes.
In these quotes the court considers granting leave to amend struck pleadings, here where the defendants advance a successful RCP 21 striking pleadings motion:C. STRIKING OUT THE CLAIMS WITHOUT LEAVE TO AMEND
[63] A motion judge’s decision to strike out a pleading under r. 25.11 without leave to amend is discretionary and should not be interfered with on appeal unless the motion judge erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable conclusion: Resolute Forest Products Inc. v. Greenpeace, 2016 ONSC 5398, 133 O.R. (3d) 167 (Div. Ct.), at para. 13; Huachangda Canada Holdings Inc. v. Solcz Group Inc., 2019 ONCA 649, 147 O.R. (3d) 644, at para. 30.
[64] The motion judge found that the claim “egregiously contravene[d] the rules of pleading”. The reasons for decision are careful and comprehensive and explain the bases on which each of the 78 problematic paragraphs were found to have violated the rules of pleading and were struck. The appellants have not established that the motion judge erred in this exercise of discretion.
[65] Having concluded that the action could not succeed as pleaded, the motion judge struck out the claim in its entirety, without leave to amend. The appellants argue that it was an error not to grant leave to amend, given the motion judge’s acceptance that “if difficulties in commonalities could be overcome, the Plaintiffs might have had a straightforward, reasonably strong, and possibly certifiable data breach case for breach of contract against Capital One for the 2019 data breach.”
[66] I would defer to the motion judge’s decision not to grant leave to amend. The appellants were provided with repeated opportunities to amend the statement of claim, by which they only compounded their problems. The motion judge did not believe that there were any facts that could be pleaded that would support the causes of action that the appellants wished to advance. It is of no use to the appellants that the motion judge entertained the thought that the appellants could have pleaded a straightforward claim for breach of contract against Capital One. Not only were these straightforward claims not advanced in the statement of claim, they would have also hampered the claims the appellants chose to advance. At this stage of the proceeding, the motion judge saw no purpose to be served in allowing the appellants another opportunity to recast its theory of liability. The appellants were given ample opportunity to advance a viable claim and are now out of runway. . Asghar v. Toronto Police Services Board
In Asghar v. Toronto Police Services Board (Ont CA, 2019) the Court of Appeal commented on the granting of leave to amend after a R21 motion:[9] The usual result when a pleading is struck is to grant leave to amend. The principles are set out in Spar Roofing & Metal Supplies Ltd. v. Glynn, 2016 ONCA 296, 348 O.A.C. 330, at paras. 35-45, where Weiler J.A. pointed out that this approach is consistent with the generous approach to pleadings amendment under r. 26. Leave to amend should accordingly be denied only in the clearest of cases: South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6; and Tran v. University of Western Ontario, 2015 ONCA 295, at para. 26. . TSI International Group Inc. v. Formosa
In TSI International Group Inc. v. Formosa (Ont CA, 2017) the Court of Appeal makes clear that, absent a clear basis for denying it, leave to amend struck pleadings should be granted if requested:[1] We are able to dispose of this appeal without addressing the substantive grounds of appeal raised. The motion judge ought to have granted leave to amend after striking from the appellants’ statement of defence and counterclaim the defence of “clean hands” and the counterclaim of “abuse of process”, and a number of paragraphs. Leave to amend should be denied only in the clearest of cases. The motion judge did not explicitly explain why he refused leave to amend. We are not persuaded by respondent’s counsel’s submission that the explanation is apparent from reading the reasons as a whole.
[2] As in Tran v. University of Western Ontario, 2015 ONCA 295 (CanLII), we conclude that in the absence of any articulated basis on which leave was denied and in the absence of any prior amendment, the appellants should not be deprived of the opportunity to amend their pleadings. . Conway v. The Law Society of Upper Canada
In Conway v. The Law Society of Upper Canada (Ont CA, 2016) the Court of Appeal generally stated the principles applicable to granting leave to amend a claim that has been struck down on a motion striking pleadings: ii. Whether leave to amend the statement of claim should have been granted:
[15] The appellant argues that the motion judge erred in determining that the appellant should not be granted leave to amend his pleading because of the motion judge’s conclusion that there was no actionable tort possible on the facts as alleged in the statement of claim.
[16] The decision not to grant leave to amend should only be made in the clearest of cases, when it is plain and obvious that no tenable cause of action is possible on the facts as alleged: South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456 (CanLII), at para. 6. That said, the decision whether or not to grant leave to amend a pleading is a discretionary one, and absent palpable and overriding error of fact or error of law, such a decision is subject to deference on appeal: Mortazavi v. University of Toronto, 2013 ONCA 655 (CanLII), at para. 3.
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