[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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