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Appeal Court Dicta

Civil Litigation - Striking Pleadings - Before Defence

. Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company)

In Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company) (Ont CA, 2021) the Court of Appeal noted the a motion under R21.01 to strike pleadings must be made promptly:
[68] Furthermore, though it is not necessary to address this ground of appeal, I wish to offer some remarks concerning the timeliness of Venmar’s r. 21.01(3)(d) motion, since it was addressed by the parties in oral argument, and is relevant to the issue of the motion judge’s residual discretion.

[69] Rule 21.02 provides that “A motion under rule 21.01 shall be made promptly and a failure to do so may be taken into account by the court in awarding costs”. The motion judge did not reference this rule but stated that while she did not condone the lateness of Venmar’s motion, the fact it was brought late did not detract from its merits.

[70] Without determining that the motion judge erred in the exercise of her discretion, I note that, in the circumstances, the timing of Venmar’s motion should have pulled her towards exercising her discretion to not hear Venmar’s motion in the first place, or to exercise her residual discretion to not grant the relief that Venmar sought. Venmar’s motion was contemplated in the summer of 2019, but was not brought until October 4, 2019, and it was heard just three weeks before trial.

[71] Case law is clear that delay in bringing a motion under r. 21.01, including r. 21.01(3)(d), can be a sufficient ground to dismiss the motion. In Fleet Street Financial Corp. v. Levinson, [2003] O.T.C. 94 (S.C.), Rouleau J. (as he then was), stated, at para. 16:
The obligation to act promptly is clear and the failure to bring a rule 21.01 motion promptly can, in the appropriate circumstances, be the basis for the judge exercising his discretion pursuant to rule 21.01 not to grant the relief sought.
[72] What constitutes “appropriate circumstances” to dismiss a r. 21.01 motion for delay partly depends on what effect the motion will have on trial efficiency.

[73] For example, in Hill v. Hamilton-Wentworth Regional Police Services Board (2003), 2003 CanLII 26760 (ON SC), 64 O.R. (3d) 28 (S.C.), leave to appeal refused, [2003] O.J. No. 1820 (Div. Ct.), a motion under r. 21.01(3)(d) was brought “years after the litigation commenced, all examinations for discovery have been completed, and a fixed trial date has been set”: at para. 45. There was no justification for the delay. The motion judge also noted that the issues to be dealt with on the motion would also arise with respect to some of the moving parties’ other claims at trial. Accordingly, dealing with the issues before the trial would “risk compromising the record at this late stage in the proceedings” and “not enhance trial efficiency”: at para. 48. On that basis, the motion was dismissed for delay.

[74] Similarly, in this case, the benefits of hearing and resolving Venmar’s r. 21.01(3)(d) motion, in terms of judicial economy or trial efficiency, were marginal. It appears that much of the same evidence and similar issues will nonetheless be considered at trial. For example, even if Fasco’s defences were properly struck because the issue of Fasco and Venmar’s relative fault was finally determined in the Quebec Actions, a judge in the Ontario Actions would nonetheless have to hear issues concerning Venmar’s potential liability for failure to warn or negligence in assembly or testing of the HRV, in relation to the Dosens and their insurer’s claims. The motion judge should have considered this fact and looked at the litigation as a whole. In my opinion, it should have weighed heavily in the analysis as to whether the discretion to dismiss the motion or to refuse to apply the doctrines should been exercised.
. Potis Holdings Ltd. v. The Law Society of Upper Canada

In Potis Holdings Ltd. v. The Law Society of Upper Canada (Ont CA, 2019) the Court of Appeal considers that R21 motions should be made promptly, even before a defence is filed:
[14] I do not agree with the appellants’ submission. While generally a defendant should move to strike a claim as disclosing no reasonable cause of action before filing a statement of defence, in some instances a defendant may bring such a motion without leave even after delivering a defence. One such instance is where it is obvious from the defendant’s pleading that the defendant takes issue with the sufficiency of the plaintiff’s claim: Arsenijevich v. Ontario (Provincial Police), 2019 ONCA 150, at para. 7.

[15] That is the case here. The Law Society’s statement of defence pleads the very deficiencies that were relied on in the motion to strike, namely, the Law Society’s statutory immunity under s. 9 of the Law Society Act.
. Arsenijevich v. Ontario (Provincial Police)

In Arsenijevich v. Ontario (Provincial Police) (Ont CA, 2019) the Court of Appeal considered a R21 striking pleadings motion where the defendant had filed a defence:
[7] Although not raised at any stage in this action, we do note that the respondents had filed a statement of defence before bringing their motion to strike under r. 21.01(1)(b). Generally, a defendant should move to strike a claim as disclosing no reasonable cause of action prior to delivery of a statement of defence: Brozmanova v. Tarshis, 2018 ONCA 523, 81 C.C.L.I. (5th) 1, at para. 26. However, where as in this case, the statement of claim is so facially deficient and largely incomprehensible, this step by the respondents is not fatal. In addition, it is evident from the contents of their pleading that the respondents took issue with the legal sufficiency of the appellant’s claim. Moreover, the motion judge’s determination was in keeping with the direction in r. 1.04 of the Rules of Civil Procedure that the rules “be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”.


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