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Striking Pleadings - R21 Determination of an Issue Before Trial

. Meekis v. Ontario

In Meekis v. Ontario (Ont CA, 2021) the Court of Appeal set out the test for R21.01(1)(b) motions to strike for no reasonable cause of action:
[16] I draw the facts below from the appellants’ amended statement of claim. They are assumed to be true for the purposes of the r. 21 motion, unless they are patently ridiculous or incapable of proof: see, Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980; Nash v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R. (3d) 1 (C.A.), at p. 6; Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, 148 O.R. (3d) 115, at para. 11, leave to appeal to S.C.C. refused, 38915 (December 10, 2020). However, as this court affirmed in Darmar Farms, at para. 11, “bald conclusory statements of fact” and “allegations of legal conclusions unsupported by material facts” are not assumed to be true

....

[62] On a motion to strike for failure to disclose a reasonable cause of action under r. 21.01(1)(b), the well-established test is whether the claim has “no reasonable prospect of success”: Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526, at para. 15; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at paras. 14-15.

[63] In Imperial Tobacco, at para. 21, the Supreme Court emphasized that the judicial approach on motions to strike “must be generous”, erring on the side of allowing novel but arguable claims to proceed to trial, since “actions that yesterday were deemed hopeless may tomorrow succeed”.

[64] On appeal from an order made under r. 21.01(1)(b), the applicable standard of review is correctness: Grand River, at para. 18; The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, 150 O.R. (3d) 449, at para. 37.
. Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company)

In Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company) (Ont CA, 2021) the Court of Appeal considered a R21 motion to strike a claim on the basis that it was frivolous and vexatious:
[26] Rule 21.01(3)(d) provides:
21.01(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,



(d) the action is frivolous or vexatious or is otherwise an abuse of process of the court
[27] When a party moves under r. 21.01(3)(d) to strike pleadings on the basis of res judicata or abuse of process, it bears the onus of satisfying the “plain and obvious” test. This test is more commonly applied under r. 21.01(1)(b) to strike out claims that disclose no reasonable cause of action, following the Supreme Court’s decision in Hunt v. T&N plc, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959. However, this court has affirmed that the same test also applies under r. 21.01(3)(d). In Simone Estate v. Cheifetz (2005), 2005 CanLII 25094 (ON CA), 201 O.A.C. 120 (C.A.), at paras. 24-25, this court noted that on a r. 21 motion to strike pleadings on the basis of issue estoppel and abuse of process, the moving party “bears a heavy onus and must establish that it is ‘plain, obvious and beyond doubt’ that the plea could not succeed”. In Waterloo (City) v. Wolfraim, 2007 ONCA 732, 287 D.L.R. (4th) 65, at para. 3, this court re-iterated that “[a] court should invoke its authority to stay an action for abuse of process only in the clearest of cases”. Similarly, in Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 8, this court held that “[a] court only invokes its authority under rule 21.01(3)(d) … in the clearest of cases” (emphasis added).[1]

[28] Extrinsic evidence is permitted on a motion under r. 21.01(3)(d), and a motion judge may make factual determinations, including with respect to whether the facts in an underlying action were already litigated in earlier proceedings: Aba-Alkhail v. University of Ottawa, 2013 ONCA 633, 311 O.A.C. 89, at paras. 13-14, leave to appeal refused, [2013] S.C.C.A. No. 491. The rule requires a motion judge to take “a hard look at the factual background, and especially the position and conduct of the parties”: Salasel, at para. 9.

[29] To summarize, Venmar had the onus of proving that it was plain and obvious that Fasco’s defences to Venmar’s claim for contribution and indemnity could not succeed, due to the application of res judicata or abuse of process.
. Abbasbayli v. Fiera Foods Company

In Abbasbayli v. Fiera Foods Company (Ont CA, 2021) the Court of Appeal considers the nature of a RCP R21.01(1)(b) motion [failure to disclose a reasonable cause of action]:
(1) The Order Striking Claims Under Rule 21.01(1)(b)

[20] I consider first the motion judge’s order striking the s. 81 ESA and the s. 131 OBCA claims without leave to amend and the s. 248 OBCA claim with leave to amend. The motion judge struck these claims under r. 21.01(1)(b) for failure to disclose a reasonable cause of action. The test is whether, assuming that the facts as stated can be proved, and reading the pleading generously with allowances for drafting deficiencies, it is “plain and obvious” that an action or a claim within the action will not succeed: see Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at pp. 979-80; Wellington v. Ontario, 2011 ONCA 274, 105 O.R. (3d) 81, at para. 14, leave to appeal refused, [2011] S.C.C.A. No. 258; Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526, at paras. 15-16. Striking pleadings under this rule serves to “[weed] out the hopeless claims and [ensure] that those that have some chance of success go on to trial”: see R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 19. A pleading in a statement of claim will be deficient under this rule where it fails to plead material facts required to sustain a particular cause of action: see Apotex Inc. v. Eli Lilly and Co., 2015 ONCA 305, 125 O.R. (3d) 561, at para. 21, leave to appeal refused, [2015] S.C.C.A. No. 291. The court should always consider whether the deficiency can be addressed through an amendment to the pleading: see Tran v. University of Western Ontario, 2015 ONCA 295, at paras. 26-27.

[21] As I will explain, in my view the motion judge was correct to have struck the claim under s. 81 of the ESA without leave to amend as it is plain and obvious that the claim could not succeed, and no amendment could have rectified the pleading in the circumstances of this case. However, the motion judge ought not to have struck the s. 131 OBCA claim without leave to amend. A claim for unpaid vacation pay under this section could be asserted by the appellant against the individual respondents, with the appropriate amendments to the pleading. Finally, the motion judge did not err in striking the s. 248 claim with leave to amend, as the appellant did not plead the necessary material facts to support the claim, and the respondents do not cross-appeal the motion judge’s refusal to strike the s. 248 claim without leave to amend.


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