Today’s Court of Appeal decision in Miguna v. Toronto Police Services Board, 2008 ONCA 799 provides a very important restatement of the principle that pleadings motions ought not to be used in place of motions for judgment. The Court writes:
A Pleading Motion is not a Trial or a Motion for Summary Judgment
[19] In any event, the motion judge erred in the approach he took to the disposition of the proceeding.
[20] The principles to be applied on a motion of this nature were summarized in Miguna No. 1, at para. 9:
On a motion to strike a pleading pursuant to Rule 21 of the Rules of Civil Procedure the facts as pleaded in the statement of claim must be taken to be true, although allegations of assumptions and speculation need not be accepted as such: see Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441 at 455. Where malice is alleged, full particulars must be provided : Rule 25.06(8). For a claim to be struck, it must be “plain and obvious” that no cause of action is disclosed: Hunt v. Carey, [1990] 2 S.C.R. 959.
[21] When it is sought to strike out a claim on the basis that it is frivolous or vexatious or an abuse of the process of the court, the court will only do so in the clearest of cases where it is plain and obvious that the case cannot succeed: Nelles v. Ontario, [1989] 2 S.C.R. 170 at para 3; Temilini v. Ontario Provincial Police Commissioner (1990), 73 O.R. (2d) 664 (C.A.). In Temilini, Grange J.A. put it this way at p. 668:
The plaintiff has pleaded all the essentials to establish his case. It is true that he is woefully short of evidence to prove his case but that is not, and in my view should not be, the test. The test, which has been articulated time and time again, and recently in Nelles v.
[22] The motion judge recognized these principles. At para. 11 of his reasons he said:
It is not disputed that on a motion to strike the test is whether it is plain and obvious on the facts pleaded that the claim of the plaintiff cannot succeed. The facts relied on by the Plaintiff must be properly pleaded. In applying the test, the Court is to assume that properly pleaded facts are true.
[23] Respectfully, however, he did not apply those principles. The error into which the motion judge fell is captured in the following observations of Carthy J.A. (McKinlay J.A., concurring) in Prete v.
It is now necessary to deal with the alternative argument of the respondents that the statement of claim should be struck under Rule 21 or Rule 25 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194… [I]n my view, at this stage of the proceedings, the facts alleged in the statement of claim should be taken as true for the purpose of determining whether the claim discloses a reasonable cause of action. To do otherwise is to effectively conduct a summary judgment proceeding under Rule 20 without having the sworn evidence of the parties to this litigation as a basis for determining whether there is a genuine issue for trial.
…
In Nelles Lamer J. … put aside concerns expressed by other courts that such actions have an intimidating effect upon those who administer justice, observing that there are safe-guards in the rules for the early disposition of spurious claims. It is easy to infer from these comments that the court should, at the earliest stage of an action of this type, assess the reality of success and eliminate those cases that lack promise of success. In the present case, I have no hesitation in concluding that, on the basis of the entire record presented to us, the action is not likely to succeed. In fact, there is nothing to indicate that it will succeed, except the allegations in the pleading. But that is a very significant exception, and we should not depart from the rule that the pleadings must be taken as factually true simply because the allegations are serious and the case appears hopeless. [Emphasis added]
[24] The same error is reflected in the reasons of the motion judge. At para. 19, he said:
The Court should, at the earliest stage of a malicious prosecution action, assess the reality of success and eliminate those cases that lack any chance of success. … The Court [in Nelles] articulated the view that actions for malicious prosecution should receive special judicial scrutiny at an early stage and that the “rules of civil procedure should not act as obstacles to a just and expeditious resolution of a case.” [Emphasis added]
[25] He then cited the oft-quoted passage from the reasons of Lamer J. in Nelles:
In his conclusion, Lamer J., at paragraph 56, underlined the importance of being able to strike meritless actions for malicious prosecution at an early stage:
In my view the inherent difficulty in proving a case of malicious prosecution combined with the mechanisms available within the system of civil procedure to weed out meritless claims is sufficient to ensure that the Attorney General and Crown Attorneys will not be hindered in the proper execution of their important public duties.
[26] Courts need to scrutinize claims of this nature carefully. Like Carthy J.A. in Prete, however, I do not read Lamer J.’s comments as mandating an aggressive attempt by judges to weed out malicious prosecution actions at the early pleading stage by effectively turning motions to strike under Rules 21 and 25 into motions for summary judgment or a trial. I read them as pointing out, simply, that the concerns about a possible chilling effect on the administration of justice if such actions are permitted to proceed are at least partly met by the fact that a procedure for striking out meritless claims exists. Lamer J. was only reminding the profession of the existence of the procedure; he was not advocating that it be transformed into something else.
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