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. 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. 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. 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. Frivolous pleadings refer to causes of action that lack substance and present incapability of well-reasoned arguments. 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. The last ground for striking out pleadings is when the pleadings is an abuse of the court process.  Striking out of pleadings can be effected through filing of a motion as in rule 21.01 or Rules 14.09, 21.01 and 25.11 provide for striking out of pleadings. 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.

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. A loophole is thus presented on limited and strict jurisdiction on hearing of a motion under rule 21.01 only to the judge.


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,

  1. It discloses no reasonable cause of action or defense
  2. May prejudice or delay the fair trial of the action;
  3. Is scandalous, frivolous or vexatious; or
  4. 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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