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Striking Pleadings - Evidence Not Normally Considered

. Xanthopoulos v. Canada (Attorney General)

In Xanthopoulos v. Canada (Attorney General) (Fed CA, 2022) the Federal Court considered the rule in motions to strike pleadings that the pleadings be assumed truthful:
[7] The appellant argues that the Motion Judge erred in failing to treat contents of the application as true on the motion to strike. We see no error in the Motion Judge’s refusal to do so in view of a distinction between factual allegations and a bald statement. The appellant’s statement in the notice of application that the statutory appeal process is not an adequate remedy is a legal conclusion that is not supported by any factual allegations. It is hence a bald statement that need not be treated as true: see Canada v. John Doe, 2016 FCA 191 at para. 23. ...
. Taylor v. Hanley Hospitality Inc.

In Taylor v. Hanley Hospitality Inc. (Ont CA, 2022) the Court of Appeal considered the interesting issue of whether judicial notice 'facts' could be considered in the R21 striking pleadings motion where the pleadings in the claim (only) were assumed to be true (no, they couldn't):
[29] Nor was it open to the motion judge to take judicial notice of the litany of adjudicative facts set out in paragraph 4 of her reasons. These adjudicative facts mirror many of the disputed allegations contained in the respondent’s statement of defence concerning the impact of the COVID-19 pandemic and of the government’s various emergency measures on the respondent’s operations and its business decisions.

[30] The concept of judicial notice allows a court to receive “facts” that are “so notorious or uncontroversial that evidence of their existence is unnecessary”. This does not allow parties “to put before the court controversial evidence to the prejudice of the opposing party without providing a proper opportunity for its truth to be tested”: Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44, at para. 5. The threshold for judicial notice is strict since the facts are not proved by evidence under oath nor tested by cross-examination: R. v. Find, 2001 SCC 32, [2001] S.C.R. 863, at para. 48.

[31] The fact of the COVID-19 pandemic is notorious and uncontroversial, as are the facts that the government declared a state of emergency and has undertaken various remedial emergency measures to combat the pandemic’s severe health, economic and social effects. However, the legislative context and intention behind the government’s emergency measures and their impact, especially as they pertain to the parties to these proceedings, are not. This is demonstrated by the parties’ respective, divergent pleadings. For example, the motion judge purported to take judicial notice of the respondent’s pleading that it “was required by the Ontario government to close all their storefronts and was limited to takeout and delivery”, which “had an impact on the employment market”. As I have already noted, the appellant did not admit those facts and disputed that her lay-off was the result of the Ontario government’s mandatory pandemic measures.

[32] Under the rule 21.01(1)(a) motion that the respondent chose to bring, the only facts that the motion judge was entitled to accept as true as far as they related to and affected the parties were those in the statement of claim. As a result, there was no basis for the motion judge’s myriad findings, including that the appellant had not resigned from her employment and that the appellant was on an infectious disease emergency leave because of the COVID-19 emergency government-mandated measures and therefore was not constructively dismissed by the respondent.
. Gaur v. Datta

In Gaur v. Datta (Ont CA, 2015) the Court of Appeal considered a R21 motion to strike pleadings, and varied from some courts by allowing that some evidence may be reviewed:
[5] The motion judge correctly identified the legal principles applicable to a motion to strike under rule 21.01(1)(b). No evidence is admissible, and the facts pleaded are assumed to be true unless patently ridiculous or incapable of proof: Lysko v. Braley, 2006 CanLII 11846 (ON CA), [2006] O.J. No. 1137 (C.A.), 79 O.R. (3d) 721, at para. 3; McCreight v. Canada, 2013 ONCA 483 (CanLII), 116 O.R. (3d) 42, at para. 29. In determining whether a cause of action is disclosed, particulars can be considered as part of the pleading. In assessing the substantive adequacy of the claims, the court is entitled to review the documents referred to in the pleadings: McCreight, at para. 32.


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