Striking Out Pleadings: The Loopholes and Recommendations
Present Legal Framework
According to the rules of Civil Procedure of Ontario, pleadings can be struck out on four
grounds. Firstly, if they do not disclose a reasonable cause of action. 1 The intricacies of this
ground is that for pleadings to be determined by a court of justice, they must show a prima facie
case with chances of success. Non-disclosure of a reasonable cause of action was espoused in the
Supreme Court case of R v Imperial Tobacco Canada Ltd. 2 The court demonstrated lack of
disclosure of reasonable action by holding that, the test to be used is one on the prospects of
success of the claim. If there is a reasonable prospect of success, the claim will proceed to trial
but if in the negative, the claim will be struck out.
The second ground is when the pleadings are scandalous, frivolous and vexatious. 3 A pleading is
deemed vexatious if it is instituted in bad faith, hopeless or offensive and it tends to cause the
opposite party unnecessary anxiety, trouble and expense. 4 Frivolous pleadings refer to causes of
action that lack substance and present incapability of well-reasoned arguments. 5 Scandalous
pleadings refer to pleadings that present irrelevant and indecent matters or issues.
Thirdly, pleadings can be struck out if they may delay or prejudice fair trial. 6 The last ground for
striking out pleadings is when the pleadings is an abuse of the court process. 7 Striking out of
pleadings can be effected through filing of a motion as in rule 21.01 or by court’s own motion as
in rule 25.11. Striking out is provided for in both rule 25.11 and 21.01. Striking out can be cured
through amendment which is covered in rule 26.
A distinction should be drawn between the rules on striking out provided in rule 21.01 and those
in rule 25.11. Striking out by motion in rule 21.01 is applicable before a trial and the motion is
filed by the defense while that in rule 25.11 is striking out by court’s own motion. Another
distinction is that the motion in Rule 21.01 is only based on one ground, that the pleadings do not
disclose a reasonable cause of action. The court attempted to make the distinction between the
two rules in Lee v Richcraft Homes Ltd. 8
In Richcraft case, motion to strike was brought under rule 21.01 but it was not heard because the
motion under rule 21.01 is a preserve of the judges and not the masters. The jurisdiction for a
motion under rule 21.01 is only for a judge according to the present law. 9 A loophole is thus
presented on limited and strict jurisdiction on hearing of a motion under rule 21.01 only to the
judge.
1 Rule 21.01 of Rules of Civil procedure in Ontario
2 R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII), [2011] 3 SCR 45
3 Rule 25.11 (b)
4 Dawkins v Prince Edward of Saxe-Weimar (1976)1 QBD 499
5 Hunt v Carey Canada Inc. [1990] 2 SCR 959
6 Rule 25.11 (a)
7 Rule 25.11 (c)
8 Lee v. Richcraft Homes Ltd., 2019 ONCA 7 (CanLII)
9 Ibid at para. 18
Recommendations
Extension of the jurisdiction for determining of motions under rule 21.01 to the Masters
The main problem that is occasioned by limiting the jurisdiction for hearing of a motion for
striking out filed under rule 21.01 to judges is that pleadings may proceed to trial when they do
not disclose a reasonable cause of action. This is so because, if rules 21 and 25 are read
disjunctively, the person with the locus standi to file a motion on non-disclosure of a reasonable
cause of action is the defense and filing a motion on rule 21.01 is not obligatory but rather
optional.
The masters should also be afforded the powers to hear and determine motioned filed under
order 21.01. This will in effect cut on expenses incurred by the litigants and also to reduce the
queue of cases and motions lined up before judges. Extension of the jurisdiction to the masters
will encourage and promote expeditious hearing and determination of the motions for striking
out.
Consolidation of provisions of Rules 21.01 and 25.11
Rules 21.01 and 25.11 are guidelines for striking out of proceedings. It is quite absurd that the
grounds for striking out set out in rule 21.01 and those in rule 25.11 are different. The main
distinction drawn between the rules as indicated above, is the fact that a motion under rule 21.01
is only a reserve of a judge while motions under rule 25.11 are moved by the court and can be
heard by both Masters and Judges.
The same grounds provided in rule 25.11 should be applicable in rule 21.01 and the vice versa.
The present rules bestow a lot of powers on the judges to determine whether to strike out
pleadings suo moto and this also, with more grounds and reasons for the motion. In contrast, the
defense is only given the power to strike out pleadings on one ground; if they do not disclose a
reasonable cause of action.
Rule 25.11 and 21.01 should be harmonized and if possible consolidated in order to reflect the
same grounds for striking out of pleadings. Harmonization of the rules can be done by altering
the grounds set out in both rules to be similar. Consolidation will be effected if the two are
combined to form one rule. Rule 21.01 could be deleted or repealed and its contents could be
reproduced in conjunction with those in rule 25.11. The amended rule 25.11 could read;
“The court may on its own motion or the motion of the defense strike out or expunge all or part
of a pleading or other document, with or without leave to amend, on the ground that the pleading
or other document,
a) It discloses no reasonable cause of action or defense
b) May prejudice or delay the fair trial of the action;
c) Is scandalous, frivolous or vexatious; or
d) Is an abuse of the process of the court.”
Effects of recommended changes to the present Ontario Rules of Civil Procedure
Consolidation of rules 21.01 and 25.11 will in effect result in ease in filing of motions for
striking out pleadings. It will further lead to extension of the jurisdiction for the masters to hear
and determine motions filed under rule 21.01, which is not the case in the present law.
Additionally, the rationale and reasons for striking out pleadings will be achieved. The
provisions on striking out pleadings will also be more concrete and less confiscated.
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