One Litigation tool available to defence counsel faced with a Statement of claim is the motion to strike. Just like any tool, this tool is applied if the circumstances dictate. In some cases it won’t help, in others it will be a useful tool. It should be applied with care to avoid unnecessary costs, expenses and delay.
One common avenue for launching motions to strike is under Rule 21 of the Ontario Rules of Civil Procedure. The principles to be applied when considering a motion under Rule 21 have been well considered in previous decisions, including by the Supreme Court of Canada in Hunt v. Carey Canada Inc. as well as by the Superior Court of Justice in Dylex Ltd. (Trustee of ) v. Anderson. In the latter case, Justice Lederman summarized the principles to be applied on Rule 21 motions as follows:
- The statement of claim should not be struck out unless it is “plain and obvious” that the claim discloses no reasonable cause of action;
- The allegations in the statement of claim are to be taken as true or capable of being proven unless they are patently ridiculous or incapable of proof;
- The statement of claim is to be read generously with due allowance for drafting deficiencies; and
- The court should not at this stage of the proceedings dispose of matters of law that are not fully settled in the jurisprudence.
There will be some claims that are capable of being struck or axed by this litigation tool. In other cases, this tool will serve no useful purpose.*
William Poulos, Barrister
* This blog is for general information only and is not legal advice. For legal advice, a lawyer should be consulted.