Striking Out Pleadings and Claims

Striking Out Pleadings and Claims

In Johnson v. Smith , 2018 BCSC 836, the entire plaintiff’s claim was struck out on the basis that it was confusing, difficult understand, unintelligible and failed to meet the requirements of Supreme Court Rule9-5(1) to inter alia disclose a reasonable claim.

Rule 9-5(1) states:

1. At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petitioner other document on the ground that:

a) it discloses no reasonable claim or defense, as the case may be

b) it is unnecessary, scandalous, frivolous or vexatious,

c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or

d) is otherwise an abuse of the process of the court and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

One of the leading decisions is Dempsey v. Envision Credit Union 2006 BC SC 750 where at paragraph 17. the law was summarized:

A pleading will be struck out if:

a) the pleadings are unintelligible, confusing and difficult to understand;

b) the pleadings not establish a cause of action and do not advance a claim known in law;

c) the pleadings are without substance, and that they are groundless, fanciful and trifle with the court’s time;

d) the pleadings are not bona fides, are oppressive and are designed to cause the defendants, anxiety, trouble and expense;

e) the action is brought for an improper purpose, particular harassment and oppression of the defendants

In Huang v Silvercorp Metals Inc 2016 BCSC 278 at para.19 , the court set out the test under Rule 9-5 (1): whether it is plain and obvious that the action is certain to fail because the pleadings contain a radical defect

Under sub rule 9-5 (1) A) , the analysis must proceed on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven (R. Imperial tobacco Canada Limited 2011 SCC 42 at paragraph 22.)

A notice of civil claim was set out clearly the material facts in which the plaintiff relies to support a cause of action known to law: Stoneman v. Denman Island Local Trust Committee 2010 BC SC 636 at paragraph 27

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 45 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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