Friday, March 8, 2013

A Superior Court has the inherent power to dismiss an action when the claim does not disclose a reasonable cause of action

Cavanaugh v. Grenville Christian College, 2013 ONCA 139 holds, somewhat surprisingly, that a Superior Court judge has the power to dismiss a claim for failure to disclose a cause of action even absent a formal motion to dismiss:

[19]       A Superior Court has the inherent power to dismiss an action when the claim does not disclose a reasonable cause of action: see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 968.  That power is most commonly exercised on a motion brought under Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to strike a pleading on the basis that it does not disclose a reasonable cause of action.  The Diocese could have brought a motion under Rule 21.01(1)(b) and joined that motion with the appellants’ motion for certification.  Had the Diocese followed that procedure, the motion judge would clearly have had the power to dismiss the action against the Diocese under Rule 21.01(1)(b).  Any appeal from that order would have been to this court pursuant to s. 6(1)(b) of the CJA
[34]       As indicated above, at para. 19, the motion judge had jurisdiction to dismiss the claim for failure to disclose a cause of action even absent a formal motion to dismiss.  Clearly, however, it would have been better had the Diocese brought a formal motion to dismiss under Rule 21.01(1)(b).  It would also have been better had the judge managing the proceedings required the Diocese to bring that motion upon being advised that the Diocese would take the position that the claim did not plead a proper cause of action against the Diocese.  A helpful example of the proper procedure is found in Drady.  The defendants, who contended that the claim did not reveal a cause of action, with the permission of the case management judge, brought a Rule 21.01(1)(b) motion to be heard immediately before the certification motion by the same judge who was to hear the certification motion: see also Kang v. Sun Life Assurance Company of Canada, 2013 ONCA 118, at paras. 25-27, aff’g 2011 ONSC 6335, 4 C.C.L.I. (5th) 86.   


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