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Federal Court - Striking Pleadings (2). Bearspaw First Nation v. Lefthand
In Bearspaw First Nation v. Lefthand (Fed CA, 2025) the Federal Court of Appeal considered a motion to strike a JR, here for prematurity:[7] The parties do not dispute the general test for striking a notice of application for judicial review. A motion to strike should only be granted in those exceptional cases where the application is "“so clearly improper as to be bereft of any possibility of success”": David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (C.A.), 1994 CanLII 3529 (FCA), [1995] 1 F.C. 588 at 600 (C.A.). There must be a "“show stopper”" or "“knockout punch”", an "“obvious, fatal flaw striking at the root of [the] Court’s power to entertain the application”": JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250 [JP Morgan] at para. 47.
[8] Here, the appellants’ motion to strike was based on an allegation of prematurity. As the Federal Court Judge observed, a party may not proceed to judicial review until all adequate remedial recourse available under the administrative process has been exhausted: C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61 at paras. 30 and 31 and JP Morgan at paras. 84 and 85. Absent exceptional circumstances, judicial review is a remedy of last resort.
[9] As this Court elaborated in JP Morgan, if the Court is not certain whether: (1) there is recourse elsewhere, now or later; (2) the recourse is adequate and effective; or (3) the circumstances pleaded fit within the exceptional circumstances recognized in the caselaw, the Court cannot strike the notice of application for judicial review: JP Morgan at para. 91. This is consistent with the need to identify an obvious, fatal flaw in order to strike an application for judicial review.
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[13] The appellants submit that the Federal Court Judge erred in following the guidance of this Court in JP Morgan (described above) regarding the threshold for striking an application for judicial review on the basis of prematurity. The appellants say that this Court’s decisions in Viaguard Accu-Metrics Laboratory v. Standards Council of Canada, 2023 FCA 63 [Viaguard] and Dugré v. Canada (Attorney General), 2021 FCA 8 [Dugré] effectively change that standard and that the Federal Court Judge failed to apply the modified standard.
[14] According to the appellants, Viaguard holds that if effective remedial recourse "“might”" be available, the notice of application for judicial review must be struck: at para. 5. They say that this is supported by Dugré where this Court stated (at para. 37) that the bar against premature judicial review is "“next to absolute”". I do not accept this submission. Neither case is incompatible with what this Court said in JP Morgan or undermines the Federal Court Judge’s conclusions.
[15] In Viaguard, the applicant chose not to file a complaint challenging a decision of the Standards Council of Canada as provided under the Council’s appeals policy. The applicant claimed that the process would not produce an effective remedy. The Federal Court determined that if an effective remedy "“might”" be available, the applicant was required to pursue the administrative complaint process to determine whether it would be, before seeking judicial review of the Council’s decision. This Court agreed and upheld the Federal Court’s decision to strike the application for judicial review on the ground of prematurity.
[16] The conclusion that an applicant must pursue an existing administrative process, even if the remedy is uncertain, before seeking judicial review is not inconsistent with JP Morgan and is not the issue here. The parties disagree not on whether a clearly available appeal process "“might”" have led to an effective remedy, but rather on whether an administrative appeal was available at all.
[17] Dugré does not assist the appellants either. In Dugré, the applicant sought judicial review of interlocutory decisions of the Canadian Judicial Council. This Court upheld decisions of the Federal Court striking out the applications for judicial review on the ground of prematurity. While the appellants submit that the protest hearing decision was interlocutory as well, that is precisely the issue that remains in dispute.
[18] The Federal Court Judge did not err in relying on the standard expressed in JP Morgan, concluding that the respondent’s application should not be struck where there is uncertainty as to whether further recourse remained available under the Election Regulations. . Bearspaw First Nation v. Lefthand [evidence]
In Bearspaw First Nation v. Lefthand (Fed CA, 2025) the Federal Court of Appeal considered evidence used on a motion to strike a JR:[19] On the motion, both parties submitted motion records including affidavit and documentary evidence. The Federal Court Judge correctly noted that, as a rule, affidavit evidence is not admissible in support of a motion to strike an application for judicial review. This is because affidavit evidence may trigger a need for cross-examination and delay the judicial review application which is meant to be heard without delay. Further, a motion to strike requires identification of an obvious flaw, and a flaw that can be shown only with the assistance of an affidavit is not obvious: JP Morgan at paras. 51-53.
[20] There are exceptions to this rule, which the Associate Judge considered, determining that a portion of an affidavit of each party was admissible: JP Morgan at paras. 53 and 54. This was largely on the basis that the material was referred to and incorporated by reference in the notice of application for judicial review. The Associate Judge determined that the balance of the affidavits and documentary evidence was inadmissible, observing that it resembled what might be tendered in a proceeding regarding the merits of the prematurity issue.
[21] The appellants submit that the Federal Court Judge erred in failing to apply the law in Picard v. Canada (Attorney General), [2019] F.C.J. No. 1600 [Picard] and cases following Picard, to support a conclusion that the Associate Judge ought to have admitted further affidavit evidence. In Picard, the Court determined that affidavit evidence may be relevant on a motion to strike a judicial review application for prematurity because a notice of application would not typically set out the facts on the existence of an adequate alternative remedy: para. 18. The appellants submit that the affidavit evidence of BFN Chief Darcy Dixon, determined to be inadmissible by the Associate Judge, goes to the very heart of the motion to strike, including evidence on BFN’s "“custom and practice”" regarding administrative remedies under the Election Regulations.
[22] The Federal Court Judge did not err. Picard does not stand for the proposition that in circumstances where prematurity is alleged, all affidavit evidence must be admitted. Having considered Picard, the Federal Court Judge endorsed the Associate Judge’s approach. The Associate Judge rejected the need for additional evidence in assessing the argument advanced by the appellants, determining that the Election Regulations would suffice. This was consistent with the "“plain and obvious”" standard that was before the Associate Judge, and the conclusion that the merits of the prematurity issue were yet to be determined.
[23] Ultimately, as the Federal Court Judge observed, the Associate Judge’s decision to admit some, but not all, of the affidavit evidence was discretionary, to be afforded deference: Sweet Productions Inc. v. Licensing LP International S.À.R.L., 2022 FCA 111 at para. 22, citing Eli Lilly Canada Inc. v. Teva Canada Limited, 2018 FCA 53 at para. 145. I find no error in the conclusion to uphold the Associate Judge’s decision on the admission of affidavit and documentary evidence. . Waterhen Lake First Nation v. Canada
In Waterhen Lake First Nation v. Canada (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, here challenging the striking of a Specific Claims Tribunal claim dealing with 'traditional harvesting'.
The court considers the striking of SCT claims, not under general provisions of the court's Federal Rules, but under the administrative SCTA s.17 ['Application to strike']:A. The Tribunal’s role on a section 17 application to strike
[62] The Tribunal began its decision by examining the burden imposed on the Crown to strike a claim under section 17 of the Act. It held that the Crown bore the onus to establish that it was plain and obvious, and beyond doubt that the Claim cannot succeed before the Tribunal: Decision at para. 3. In approaching this assessment, the Tribunal recognized that it should: 1) accept that the assertions made in the Claim are true; 2) interpret the Act broadly and liberally, recognizing the remedial purpose and process of the Tribunal; and 3) consider the fact that the Claim was novel in the context of a continuing evolving area of law: Decision at paras. 1, 3–4.
[63] In framing the legal standard governing an application to strike, the Tribunal relied on the test set out in leading Supreme Court of Canada precedents, including R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 17, [2011] 3 S.C.R. 45 [Imperial Tobacco], to govern motions to strike pleadings for not disclosing a reasonable cause of action. I note that a decision that is consistent with the established understanding of a legal standard well known in law and in the jurisprudence will generally be reasonable: Vavilov at para. 111.
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[67] The Applicant argues that it was unreasonable for the Tribunal to decide there was no need for a full evidentiary record on a motion to strike under section 17 of the Act. I disagree. In Imperial Tobacco, relied on by the Tribunal, the Supreme Court observes that motions to strike proceed on the basis that the facts pleaded are true (Imperial Tobacco at para. 17). It also notes that striking out claims that have no reasonable prospect of success "“promotes litigation efficiency, reducing time and cost”" by allowing litigants to "“focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless”" and allowing decision makers to focus on claims that have a reasonable chance of success (Imperial Tobacco at para. 20) [emphasis added]. The Tribunal’s approach under section 17 of the Act is consistent with the concern for litigation efficiency and timeliness that animates the power to strike claims. It is also aligned with the Act’s emphasis on the resolution of claims in a "“just and timely manner”" (Act, Preamble) and its direction that, in deciding how to conduct a hearing, the Tribunal have regard to "“the importance of achieving an expeditious resolution”" (Act, subsection 26(2)). . Empire Company Limited v. Canada (Attorney General)
In Empire Company Limited v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from the striking of a JR challenging the grant of a "decision of the Commissioner of Competition to commence an inquiry (the Inquiry) under the Competition Act".
Here the court considers the test motions to strike:[3] On appeal before us, the appellants contest the Federal Court’s reasons for granting the motion to strike and argue that the Federal Court erred in granting the motion because the respondent had not met the onerous legal test applicable to motions to strike. The appellants emphasize that their application for judicial review is based on the Commissioner’s alleged lack of jurisdiction to initiate the Inquiry and that they must be able to challenge that decision directly.
[4] As we are reviewing the Federal Court’s decision striking the appellants’ application for judicial review, the normal appellate standards of review apply, as described in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[5] We first find that the Federal Court correctly identified and properly applied the very high standard required to grant a motion to strike: whether the underlying application for judicial review is "“doomed to fail”" or is "“so clearly improper as to be bereft of any possibility of success”:" Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 at para. 47; Wenham v. Canada (Attorney General), 2018 FCA 199 at para. 33. . McMillan v. Canada
In McMillan v. Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal, this from class action orders from a motion judge of the Superior Court that "dismissed Mr. McMillan’s motion to certify the action as a class proceeding on the basis that his statement of claim failed to disclose a reasonable cause of action" and refused "leave to amend his statement of claim".
Here the court considers (federal) motions to strike pleadings, particularly for failure to plead a reasonable cause of action:[69] Plaintiffs cannot file inadequate pleadings and rely on defendants to request particulars, nor can they supplement insufficient pleadings to make them sufficient through particulars: Mancuso, above at para. 20; AstraZeneca Canada Inc. v. Novopharm Limited, 2010 FCA 112.
[70] Moreover, in assessing whether a statement of claim should be struck, the Court must look at the claim as it has been drafted, not how it might be drafted: Brink, above at para. 72; Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184, at para. 40.
[71] The normal rules of pleading apply with equal force to proposed class proceedings. Indeed, the launching of a proposed class action is a serious matter as it potentially affects the rights of many class members as well as the interests of defendants. Compliance with the requirements of the Federal Courts Rules is consequently not a trifling or optional matter; it is both mandatory and essential: Brink, above at para. 60; Merchant Law Group, above at para. 40.
[72] Also relevant to the analysis are the principles governing motions to strike claims on the basis that they do not disclose a reasonable cause of action. I will review these principles next.
(2) Principles Governing Motions to Strike
[73] The Crown brought its motion to strike Mr. McMillan’s statement of claim pursuant to Rule 221(1) of the Federal Courts Rules, and its submissions focused on whether the claim disclosed a reasonable cause of action: Federal Court reasons at para. 5.
[74] A statement of claim should not be struck unless it is plain and obvious that the action cannot succeed, assuming the facts pleaded in the claim to be true: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93 at 980; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 63. In other words, the claim must have no reasonable prospect of success: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 17.
[75] The onus is on the party who seeks to establish that a pleading fails to disclose a reasonable cause of action: La Rose v. Canada, 2023 FCA 241 at para. 19; Edell v. Canada, 2010 FCA 26 at para. 5. The threshold that a plaintiff must meet to establish that a claim discloses a reasonable cause of action is a low one: Brake v. Canada (Attorney General), 2019 FCA 274 at para. 70.
[76] Moreover, pleadings must be read generously, in a manner that accommodates any inadequacies in the allegations that are merely the result of deficiencies in the drafting of the document: see Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, [1985] S.C.J. No. 22 at 451.
[77] Motions judges should not delve into the merits of a plaintiff’s arguments, but should, rather, consider whether the plaintiff should be precluded from advancing the arguments at all: Salna v. Voltage Pictures, LLC, 2021 FCA 176 at para. 77, leave to appeal to SCC refused, 39895 (26 May 2022). Recognizing that the law is not static, motions judges must err on the side of permitting novel, but arguable claims to proceed to trial: R. v. Imperial Tobacco, above at paras. 19-25; Mohr v. National Hockey League, 2022 FCA 145 at para. 48, leave to appeal to SCC refused, 40426 (20 April 2023).
[78] That said, it must also be recognized that there is a cost to access to justice in allowing cases that have no substance to proceed. The diversion of scarce judicial resources to such cases diverts time away from potentially meritorious cases that require attention: Mohr, above at para. 50; Coote v. Lawyers’ Professional Indemnity Company, 2013 FCA 143 at para. 13, leave to appeal to SCC refused, 36226 (9 April 2015).
[79] Finally, while evidence is not ordinarily admissible on a motion to strike under Rule 221(1)(a) of the Federal Courts Rules, it may be considered insofar as the moving party alleges that the Court lacks or must decline jurisdiction: Greenwood, above at para. 95. . Iris Technologies Inc. v. Canada
In Iris Technologies Inc. v. Canada (SCC, 2024) the Supreme Court of Canada dismisses an appeal regarding "the shared statutory jurisdiction in tax matters of the Tax Court of Canada and the Federal Court of Canada".
Here the court reviews the test for striking pleadings (here a JR):[26] There is no dispute on the proper test to be applied on a motion to strike in this context. A court seized of a motion to strike assumes the allegations of fact set forth in the application to be true and an application for judicial review will be struck where it is bereft of any possibility of success (JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557, at para. 47). It is understood to be a high threshold and will only be granted in the “clearest of cases” (Ghazi v. Canada (National Revenue), 2019 FC 860, 70 Admin L.R. (6th) 216, at para. 10). . Davis v. Canada (Royal Canadian Mounted Police)
In Davis v. Canada (Royal Canadian Mounted Police) (Fed CA, 2024) the Federal Court of Appeal considers the test for striking claims, and it's cost in 'access to justice':VIII. Did the Associate Judge Err in Striking Ms. Davis’ Statement of Claim?
[56] The next question for determination is whether the Associate Judge erred in striking Ms. Davis’ statement of claim.
[57] The RCMP’s motion to strike was brought under Rules 221(a) and (f) of the Federal Courts Rules, alleging that the Federal Court lacked the jurisdiction to entertain Ms. Davis’ action by virtue of subsection 236(1) of the FPSLRA.
[58] The case law tells us that a statement of claim should not be struck unless it is plain and obvious that the action cannot succeed, assuming the facts pleaded in the statement of claim to be true: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93 at 980; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 63. In other words, the claim must have no reasonable prospect of success: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 21.
[59] The threshold that a plaintiff must meet to establish that a claim discloses a reasonable cause of action is a low one: Brake v. Canada (Attorney General), 2019 FCA 274 at para. 70. A claim must, moreover, be read generously, in a manner that accommodates any inadequacies in the allegations that are merely the result of deficiencies in the drafting of the document: see Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, [1985] S.C.J. No. 22 at 451.
[60] Judges should refrain from delving into the merits of a plaintiff’s argument on a motion to strike, but should, rather, consider whether the plaintiff should be precluded from advancing the argument at all: Salna v. Voltage Pictures, LLC, 2021 FCA 176 at para. 77. Recognizing that the law is not static, judges must also err on the side of permitting novel, but arguable claims to proceed to trial: R. v. Imperial Tobacco, above at paras. 19-25; Mohr v. National Hockey League, 2022 FCA 145 at para. 48, leave to appeal to SCC refused, 40426 (20 April 2023).
[61] That said, it must also be recognized that there is a cost to access to justice in allowing cases that have no substance to proceed. The diversion of scarce judicial resources to such cases diverts time away from potentially meritorious cases that require attention: Mohr, above at para. 50; Coote v. Lawyers’ Professional Indemnity Company, 2013 FCA 143 at para. 13.
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