Thursday, September 20, 2012

Facts are assumed true on pleadings sufficiency motions

Schembri v. Way, 2012 ONCA 620 has a good passage making clear that pleading sufficiency motions are not to be determined on evidence but on the pleadings alone:


[33]       The motion judge also erred in suggesting that there must be evidence to sustain such a claim. It may be that because there was such an abundance of evidence already developed in the record in this matter, the motion judge expected sworn or documentary evidence to support the proposed new pleadings. However, that is not a requirement on a motion to add a party (subject to other considerations such as prejudice or abuse of process). As Moldaver J.A. stated in Andersen Consulting v. Canada (Attorney General) (2001), [2002] 150 O.A.C. 177 at para. 34: “[T]he law is clear that unless the facts alleged are based on assumptive or speculative conclusions that are incapable of proof, they must be accepted as proven and the court should not look beyond the pleadings to determine whether the action can proceed.”



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