Wednesday, July 17, 2013

Documents referred to in Claim may be considered on motion to strike for no cause of action

McCreight v. Canada (Attorney General), 2013 ONCA 483 deals with the principle that, on a motion to strike for no cause of action, documents expressly referred to in the claim may be considered by the court. The principle is well known from Montreal Trust Co. of Canada v. Toronto Dominion Bank (1992), 40 C.P.C. (3d) 389. Here the Court writes:

[27]       On this appeal, the appellants seek to rely on five documents. They submit that these documents form part of their pleading. The documents consist of: a transcript from the criminal proceedings; the three decisions of Justices Daudlin, Momotiuk, and Quinn; and the CRA's Tax Operations Manual. The appellants do not seek to rely on the other documents listed at the end of their pleading.

[28]       The respondents argue that these five documents should be disregarded because they were not included in the motion record before the motion judge; there was no argument before the motion judge that they formed part of the appellants' pleading; the documents were not considered by the motion judge, who made no ruling on this issue; and, based on the authority of Montreal Trust Co. of Canada v. Toronto Dominion Bank (1992), 40 C.P.C. (3d) 389 (Ont. C.J. (Gen. Div.)),Leadbeater v. Ontario (2001), 16 C.P.C. (5th) 119 (Ont. S.C.), and Bird v. Public Guardian and Trustee, [2002] O.J. No. 408 (S.C.), they ought not to form part of the amended statement of claim.

[29]       No evidence is admissible on a rule 21.01(1)(b) motion to strike out a pleading on the basis that it discloses no reasonable cause of action. On such a motion, the allegations in the statement of claim are taken as being proven, unless they are patently ridiculous or incapable of proof: Nash v. Ontario (1995), 27 O.R. (3d) 1 (C.A.), at p. 6. Therefore, no evidence is either necessary or permissible on such a motion.

[30]       Rule 25.06(7) of the Rules of Civil Procedure provides that:

The effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible, but the precise words of the document or conversation need not be pleaded unless those words are themselves material.

[31]       The issue is whether the documents the appellants seek to rely upon are sufficiently pleaded and therefore form part of the amended statement of claim upon which the motion judge could make his decision.

[32]       As noted by Borins J. (as he then was) in Montreal Trust Co., at para. 4, a statement of claim is deemed to include any documents incorporated by reference into the pleading and that form an integral part of the plaintiff's claim. Among other things, this enables the court to assess the substantive adequacy of the claim. In contrast, the inclusion of evidence necessary to prove a fact pleaded is impermissible. A motion to strike is unlike a motion for summary judgment, where the aim is to ascertain whether there is a genuine issue requiring a trial. On a motion to strike, a judge simply examines the pleading; as mentioned, evidence is neither necessary nor allowed. If the document is incorporated by reference into the pleading and forms an integral part of the factual matrix of the statement of claim, it may properly be considered as forming part of the pleading and a judge may refer to it on a motion to strike.

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