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Striking Pleadings - Novel Causes

. Paton Estate v. Ontario Lottery and Gaming Corporation (Fallsview Casino Resort and OLG Casino Brantford)

In Paton Estate v. Ontario Lottery and Gaming Corporation (Fallsview Casino Resort and OLG Casino Brantford) (Ont CA, 2016), where embezzled funds were spent in gambling, the Court of Appeal commented as follows on the law applicable to motions to strike:
(1) Motions to strike

[11] As the Supreme Court indicated in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII), [2011] 3 S.C.R. 45, at para. 19, the purpose of a motion to strike is to eliminate hopeless claims. However, the court in that case also noted, at para. 21, that it “is a tool that must be used with care.”

[12] It is not determinative, on a motion to strike, that the law has not yet recognized a particular claim. Rather, the court must ask whether it is plain and obvious that the claim has no reasonable prospect of success. The court must take the facts pleaded in the statement of claim as true, unless they are patently ridiculous or manifestly incapable of being proven, and the approach must be generous, erring on the side of allowing a novel, but arguable, claim to proceed. While no evidence is admissible on a motion to strike, claimants must clearly plead all facts on which they intend to rely, as those facts are the basis on which the possibility of success will be evaluated. See Imperial Tobacco, at paras. 17-22; and Frank v. Legate, at para. 36, and the cases cited therein.


[14] I recognize that these factual allegations were not always neatly tied to a particular cause of action in the statement of claim. However, that is not fatal on a pleadings motion, provided the material facts are pleaded: Dean’s Standard Inc. v. Hachem, 2014 ONSC 1977 (CanLII), at para. 14; McGillvray v. Penman, 2016 ONSC 1271 (CanLII), at para. 12. See also Almas v. Spenceley, 1972 CanLII 609 (ON CA), [1972] 2 O.R. 429 (C.A.), at p. 433.


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