Wednesday, October 24, 2012

Pleadings to be read broadly on a motion to strike

Fox v PW Lorch & Associates Ltd, 2012 SKCA 93 is a useful source for the principle that, on motions to strike, pleadings must be read broadly:

[10]  Because of the possibility that a litigant may be denied their day in court as a result of a successful motion to strike, the courts have generally taken a generous reading of pleadings when faced with such an application cognizant, nevertheless, that the claim must disclose a cause of action.  In Tottrup v. Alberta (Minister of Environment),  2000 ABCA 121, 186 D.L.R. (4th) 226:

8        The principles governing an application to strike a statement of claim for failure to disclose a cause of action are relatively settled. In brief, the Court must assume that the allegations of fact made by the plaintiff are true. The Court then determines whether those facts disclose a cause of action in law. The test set out by the Supreme Court in Hunt v. Carey Canada Inc.,  [1990] 2 S.C.R. 959 at 980 is whether it is " . . . plain and obvious' that the plaintiff's statement of claim discloses no reasonable cause of action." Caution is required before concluding that the plaintiff has no chance of success. The plaintiff is entitled to a broad reading of the pleadings. In my view, this is particularly important where a question arises as to the expiry of a limitation period. Subject to limitation questions, the Court may grant leave to include further facts if an application is made. In addition, a determination that there is no cause of action on one set of pleadings is generally no bar to framing a new action on different facts.

9        Although the pleadings should be liberally interpreted, the Court has a duty to apply the Rule as it is intended. If the alleged facts, examined in light of the existing law, do not disclose a cause of action the claim should be struck. Needless litigation should be avoided.

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