Motions to strike, stay and dismiss (r.21)

Motions to strike, stay and dismiss (r.21)

• 
  Not looking at the merits, deficiency of an issue on it’s face
  
• 
  21.01(1)(a) motion for determination of a question of law if its resolution may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs → used rarely
  

• 
  No evidence is admissible except with leave of a judge or with consent of both parties (r. 21.01(2)(a)) →need for evidence departs from question of law, but might be necessary to show why something is vexatious, etc.
  
• 
  See also “special case” below (r. 22) – same tool but less adversarial
  
• 
  21.01(1)(b) strike out a pleading that discloses no reasonable cause of action or defence
  
  • 
    No evidence is admissible (r. 21(2)(b)) → in order to strike out a pleading it must be fatally deficient
    
    • 
      Why? Evidence we use to show something is true. Here, assuming pleaded facts are true, yet because missing core parts of cause of action, doomed from the start (for example, contract law requires offer, acceptance, consideration, intention etc for breach. If no contract made out in pleading, any pleading about breach of contract will fail from start.
      
  • 
    Eliopoulos para 8/42– striking a pleading: “stringent, with a difficult burden”. Allegations of fact “unless patently ridiculous or incapable of proof” must be taken as proven. Must show that it is “plain and obvious” the claim would not succeed
    
    • 
      Eliopolous had a cause of action that did not exist at the time
      
    • 
      Should be read generously and cases should not be dismissed simply because they are novel
      
  • 
    Jane Doe string of sexual assaults in Church/Wellsley area. Perpetrator had a profile and police knew the cases started to look alike. Allegations that police knew this would likely happen again and failed to warn in adequate ways. CoA in tort and s.7 security of the person
    
    • 
      At the time, beyond the scope of tort law. Police were not responsible for these things
      
    • 
      Stands for the proposition that since a case is novel, it is not fatal *important for the development of the common law
      
  • 
    Brown: “These principles must be applied, however, in the context of the case before us”. Aboriginal claims particularly undeveloped and fluid, obligations are unsettled. Court should approach any invitation to strike out with caution *areas of law that are fluid (vs. novel CoA)
    
• 
  21.01(3) defendant may move to have an action stayed or dismissed
  
  • 
    (a) court has no jurisdiction over the subject matter
    
  • 
    (b) P is without legal capacity (Downtown Eastside)
    
  • 
    (c) another proceeding pending
    
  • 
    (d) action frivolous or abuse of process of the court
    
    • 
      Abuse of court process could include something like a limitation period / res judicata
      
    • 
      Consider also r. 2.1 stay/dismiss vexatious matters (below)
      
  • 
    Need evidence to prove any of these
    
• 
  21.02 motion to be made promptly – failure to do so may be taken into account for costs
  
• 
  Recall also r. 25.11
  

Download 217.64 Kb.

Share with your friends: