Motions to strike on the basis of law

First Majestic Silver Corp. v. Davila Santos, 2012 BCCA 5, released last week, has a useful restatement of the law respecting motions to strike on the basis of law:

 

[19]         In striking paragraph 41A and refusing the application of the defendants to add paragraphs 39A and 41.1, the chambers judge applied the well-known test articulated in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980, 74 D.L.R. (4th) 321; namely, "assuming that the facts as stated in the statement of claim can be proved, is it 'plain and obvious' that the plaintiff's statement of claim discloses no reasonable cause of action?"  Of course, this test was expressed in the context of a claim being struck from a statement of claim. In the context of a possible defence being struck from a statement of defence, the test is whether it is plain and obvious that the pleading does not disclose a reasonable defence.

 

[20]         The Supreme Court of Canada recently had occasion to comment on motions to strike in R. v. Imperial Tobacco Canada Ltd. (sub. nom. British Columbia v. Imperial Tobacco Canada Ltd.; Knight v. Imperial Tobacco Canada Ltd.), 2011 SCC 42, 335 D.L.R. (4th) 513. Chief Justice McLachlin made, among others, the following comments:

 

[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: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15, 233 D.L.R. (4th) 193; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980, 74 D.L.R. (4th) 321. Another way of putting the test is that the claim has no reasonable prospect of success.

 

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[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 ... 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: Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 455, 18 D.L.R. (4th) 481. No evidence is admissible on such a motion: r. 19(27) of the Supreme Court Rules (now r. 9‑5(2) of the Supreme Court Civil Rules).

 

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[25]      ... 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.

 

Again, of course, these comments were made in the context of a motion to strike a claim and must be adapted to the present situation where it is a pleaded defence and a proposed defence that are under consideration.