Striking Out a Claim

Striking outThe legal principles for striking out a claim were recently discussed in the Saskatchewan case of Filson v  AG Canada 2014 SKQB 164

16.   The principles on applications of this nature are well established and were summarized by me in Collins v. McMahon, 2002 SKQB 201, [2002] S.J. No. 318 (QL) at para. 11.

These principles have been cited with approval by the Saskatchewan Court of Appeal in R.L.T.V. Investments Inc. v. Saskatchewan Telecommunications, 2009 SKCA 83, 331 Sask. R. 78at para. 22 and in Swift Current (City) v. Saskatchewan Power Corp., 2007 SKCA 27, 293 Sask. R. 6at para. 27.

The principles are the following:

1. The claim should be struck where, assuming the plaintiff proves everything alleged in the claim, there is no reasonable chance of success (Sagon v. Royal Bank of Canada (1992), 105 Sask. R. 133, [1992] S.J. No. 197 (QL)(Sask. C.A.) at 140).
2. The jurisdiction to strike a claim should only be exercised in plain and obvious cases where the matter is beyond doubt (Sagon, at 140; Milgaard v. Kujawa (1994), 123 Sask. R. 164, [1994] 9 W.W.R. 305 at 312 (Sask. C.A.)).
3. The court may consider only the claim, particulars furnished pursuant to a demand and any document referred to in the claim upon which the plaintiff must rely to establish its case (Sagon, at p. 140).
4. The court can strike all, or a portion, of the claim (Rule 173).
5. The plaintiff must state sufficient facts to establish the requisite legal elements for a cause of action: Sandy Ridge Sawing Ltd. v. Norrish and Carson (1996), 140 Sask. R. 146, [1996] 4 W.W.R. 528 (Sask. Q.B.).
17    The Supreme Court of Canada has recently restated the law on an application to strike a statement of claim in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, and as stated by Scherman J. in Saskatchewan Indian Gaming Authority Inc. v. Germain, 2011 SKQB 385, 384 Sask. R. 197:
13 … [t]he fact that this decision was decided in the context of British Columbia Supreme Court rule 19(24)(a) does not restrict in any way its application to an application under Saskatchewan Rule 173(a). (para 13)
11      In Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 (S.C.C.), Chief Justice McLachlin said at paras. 17, 21, 22 and 25:
17 … A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action … Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial …
. . .
21 Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging.
Actions that yesterday were deemed hopeless may tomorrow succeed.
Before Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.
22 A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven … It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted.
. . .
25 Related to the issue of whether the motion should be refused because of the possibility of unknown evidence appearing at a future date is the issue of speculation. The judge on a motion to strike asks if the claim has any reasonable prospect of success. In the world of abstract speculation, there is a mathematical chance that any number of things might happen. That is not what the test on a motion to strike seeks to determine. Rather, it operates on the assumption that the claim will proceed through the court system in the usual way – in an adversarial system where judges are under a duty to apply the law as set out in (and as it may develop from) statutes and precedent. The question is whether, considered in the context of the law and the litigation process, the claim has no reasonable chance of succeeding.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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