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Civil Litigation - Striking Pleadings - No Jurisdiction [R21.01(3)(a)]

. Jama v. The Speaker

In Jama v. The Speaker (Div Court, 2024) the Divisional Court grants a motion to dismiss/quash a JR, here on the rarely-used grounds of 'parliamentary privilege' [though it may be better characterized as an 'immunity' (see para 28), and I am categorizing it as that; 'privilege' is more accurately used as an evidence prohibition]. This motion was partially brought under R21.01(3)(a) ['Determination of an Issue Before Trial - Defendant - Jurisdiction']:
[18] .... Under r. 21.03(3)(a) the application may be dismissed because the court has no jurisdiction over the subject matter of the application. The court either has jurisdiction or it does not have jurisdiction: TeleZone Inc. v. Attorney General (Canada), 2008 ONCA 892, at para. 92, aff’d, 2010 SCC 62. The choice of subrule does not affect the outcome of this case.

[19] Where the requirements of the rules are met, it is “beneficial, and indeed critical to the viability of civil justice” that claims that are doomed to fail be disposed of at an early stage in the proceedings: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, at para. 19.
. Skof v. Bordeleau

In Skof v. Bordeleau (Ont CA, 2020) the Court of Appeal sets out the test for R21.01(3)(a) [dismissal for lack of jurisdiction]:
II: The test under r. 21.01(3)(a)

[7] Because the parties raise the issue, I will briefly address the appropriate test to be applied when deciding a motion under r. 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[8] The basic proposition applicable to r. 21.01(3)(a) can be stated fairly simply: either the Superior Court of Justice has jurisdiction over a claim or it does not. In deciding that issue, it must be remembered that the Superior Court of Justice, as a court of inherent jurisdiction, has jurisdiction over every conceivable claim unless (i) the claim does not disclose a reasonable cause of action or (ii) the jurisdiction has been removed by legislation or by an arbitral agreement: TeleZone Inc. v. Canada (Attorney General), 2008 ONCA 892, 94 O.R. (3d) 19, at para. 92, aff’d 2010 SCC 62, [2010] 3 S.C.R. 585.

[9] Some prior authorities have debated whether it is appropriate to use the “plain and obvious” test under r. 21.01(3)(a). I do not think it is helpful to further that debate. It is clear that, in order to find that the Superior Court of Justice does not have jurisdiction to entertain a claim, it must be “clear and unequivocal” that the jurisdiction has been ousted: TeleZone, at para. 92. ...


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Last modified: 28-05-24
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