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Civil Litigation - Striking Pleadings - R21 v R25.11 Striking Pleadings

. Lee v. Richcraft Homes Ltd.

In Lee v. Richcraft Homes Ltd. (Ont CA, 2019) the Court of Appeal drew the distinction between R21 and R25.11 motions, and stated the test for leave to appeal to the Divisional Court:
[18] Richcraft’s motion to strike was brought under r. 21, as a motion to dismiss a claim that discloses no reasonable cause of action. Since rule 21 motions are required to be heard by judges, the master was unable to hear the motion under this rule. Instead, he agreed at the hearing to consider the motion to strike under r. 25.11 (which permits the court to strike, with or without leave to amend, a pleading that is scandalous, frivolous or vexatious, or an abuse of the process of the court).

[19] In Panalpina Inc. v. Sharma (1988), 29 C.P.C. (2d) 222, Master Sandler helpfully explained the difference between motions to strike out pleadings under r. 25.11 and r. 21.01: at pp. 234-35, 241. He correctly stated that, to determine whether there is jurisdiction, the master first needs to decide which rule is the real basis for the motion, regardless of what the moving party is claiming: at p. 231; see also A.B. v. Halton Children’s Aid Society, 2016 ONSC 6195 (Master) (CanLII), at paras. 21-23. The master hearing the motion in this case was required to adjourn the motion to a judge, if it was in fact a motion to strike for failure to disclose a reasonable cause of action, under r. 21. Here, the primary reason for the master’s dismissal of the claim without leave to amend was that Mr. Lee lacks standing. Standing is a matter that is properly addressed in a r. 21 motion: see George-McCool v. Toronto (City) Police Service Board, 2008 CanLII 54778 (Ont. S.C.), at para. 6. To the extent that the master’s decision was based on Mr. Lee’s lack of standing, it appears to have been made outside the master’s jurisdiction under r. 25.11.

[20] The master also concluded that the claim was “frivolous” and “an abuse of process”, apparently because of the deficiencies in Mr. Lee’s pleading. “As the exercise of the power set out in rule 25.11 denies a litigant a full trial of the merits of the claim, it must be exercised only in the clearest of cases”: Wernikowski v. Kirkland, Murphy & Ain (1999), 1999 CanLII 3822 (ON CA), 50 O.R. (3d) 124 (C.A.), leave to appeal to SCC refused, [2000] S.C.C.A. No. 98, at para. 12; M.A.S. (Litigation guardian of) v. Ludwig (2004), 2004 CanLII 30968 (ON CA), 245 D.L.R. (4th) 149 (Ont. C.A.), at p. 154. Reading the statement of claim generously, Mr. Lee’s claim is for damages for the loss of his business and equipment as a result of Richcraft’s conduct in failing to deal with his complaints about the other tenant and in terminating the lease. The master ought to have considered whether the pleadings deficiencies could have been addressed through amendments to the statement of claim under rules 26 and 5.04(2), to clarify Mr. Lee’s personal claim based on his plea of harassment and/or to add Jay-Pee, the tenant under the lease, as a plaintiff. See for example Mazzucca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768, and in particular (with the abolition of the doctrine of special circumstances), the concurring reasons of Laskin J.A. in that case.


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