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Pro Se Litigant

Protect Your Civil Claim from a Motion to Strike

Pitfalls:  Limitation Period; Cause of Action

The Civil Claims Process

Medical negligence often leads to serious, irreversible injury. In Canada, a patient who looks to the law for relief must file a Statement of Claim in the Queen's Bench Court of their province. Soon after, the opposing party will take two predictable steps:

Limitation Period:  As the first order of business, the defendant doctor reviews the Statute of Limitations. No matter how much harm the doctor caused, no matter how much merit your claim shows – if you filed your claim after the limitation period expired, that doctor is off the hook.

Motion to Strike:  If you are within the limitation period, the doctor next casts his eye on the Queen's Bench Rules of Civil Procedure which describes legal remedies. The doctor will select the one called Motion to Strike a Statement of Claim. This is the defendant doctor's opening move, though the allowed grounds are narrow:

  • If a claim is unarguable in law, frivolous, or vexatious it can legitimately be struck before it reaches the trial stage.
  • Caveat: If your claim is none of those, your opponent may still attempt a Motion to Strike as a way to wear down the plaintiff. These scorched-earth tactics are sanctioned by the Canadian Medical Protective Association.

Understanding that agenda is not enough. Learn the concepts, precedents, and rules of court which form the bedrock of the claims process, and arrive in the courtroom armed with knowledge to protect your claim.

The Law on Striking Claims

The Supreme Court precedent Hunt v. Carey Canada Inc. (1990) SCC 90 set parameters for when a Statement of Claim can, and cannot, be struck. It places strict boundaries on the terms frivolous, vexatious, and abuse of process. The SCC also detailed the many reasons why a claimant should not be driven from the judgement seat.

Hunt v Carey Canada is exceptional, an instruction manual on the law. It shows how to protect your claim from a premature end. SCC stance: Plaintiffs shall not be driven from the judgment seat.

It is illuminating to read the history of how the law developed in regard to striking claims. There were several major stepping stones, each representing a mistake made by a claimant in the past which the courts had to rule upon. The chronicle starts in England, where the law of Canada had its origin.

The plain and obvious test was codified in England in the 1880s. Soon it was adopted by Canada. It stood up over time. The civil procedure we know today is forged from a century of refinements on that theme:

England (1880s)

Courts can ensure that their process is not used simply to harass parties through initiation of actions that are obviously without merit.

England (1911)

The Court has the right to stop an action if it is wantonly brought without the shadow of an excuse when there cannot at any stage be any doubt that the action is baseless. But from this, to a summary dismissal of actions because the judge in chambers does not think they will be successful in the end, lies a wide region.

The power of arresting an action and deciding it without trial is to be very sparingly used, and rarely, if ever, except in cases where the action is an abuse of legal procedure. Differences of law, just as differences of fact, are to be decided by trial. A plaintiff shall not be driven from the judgment seat without a right to be heard, except where the cause of action is obviously and almost incontestably bad.

Canada - Ontario (1960)

Ontario adopted the plain and obvious from England. This allows pleadings to be struck out if disclosing no reasonable cause of action, or it the action is shown to be vexatious or frivolous. The Rule has only been acted upon in plain and obvious cases, and it should only be so when the Court is satisfied that the case is one beyond doubt.

The plain and obvious test is rooted in the need for courts to ensure their process is not abused. But if the plaintiff brings a case involving complex issues of fact and law, or raises a novel legal proposition, these should not prevent proceeding with the claim.

Reasonable cause of action: Does the plaintiff advance an argument that can properly form the subject matter of a trial? Can the complaint be argued in law?

The power to strike out proceedings should be exercised with great care and reluctance. The court would have to conclude that the plaintiff's action could not possibly succeed; or that clearly and beyond all doubt, no cause of action in law had been shown.

The phrase no reasonable cause of action does not challenge the truth or gravity of a plaintiff's experience. This phrase refers only to whether there is an arguable point in law – whether the details of the experience, and the type of injury, match any corresponding regulation or ordinance written into the civil statutes of the region.

Canada - British Columbia (1960)

British Columbia adopted a similar treatment. So long as the Statement of Claim, as it stands or as it may be amended, discloses some question fit to be tried by a judge or jury, the mere fact that the case is weak or not likely to succeed is no ground for striking it out.

If facts must be explored before rights can be definitely decided, the rule ought not to be applied. The complexity or novelty of the question the plaintiff wishes to bring to trial should not act as a bar to that trial taking place.

Canada - Supreme Court (1990)

The Supreme Court has consistently upheld the plain and obvious test. The law is clear. The test to be applied is: The facts are to be taken as proved. When so taken, the question is do they disclose a reasonable cause of action, defined as a cause of action with some chance of success?

The plaintiff should not be driven from the judgment seat if there is a chance the claim might succeed. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with the case.

Only if the action is certain to fail because it contains a radical defect, should the relevant portions of a claim be struck (but the claim itself remains alive).

Canadian Courts have affirmed repeatedly: It is singularly inappropriate to use the Rule's summary procedure to prevent a party from proceeding to trial on the grounds that the action raises difficult questions or a complex point of law. On the contrary, it may well be critical that such actions be allowed to proceed.

Grounds for a Motion to Strike

You file a Statement of Claim, and the defendant responds with a Motion to Strike, in hopes of eliminating all or a portion of your claim for either real or speculative reasons. What are your responsibilities and protections?

In law, a claim is called a pleading. Thus within the Rules of Civil Procedure, look for a section titled Rule for Striking Out Pleadings. Each province enacts such a Rule, though the title and content differ by region.

This Rule tells you on what basis the Court may order the whole or any part of a claim to be struck out or amended before trial. Below is an aggregate of the grounds available across Canada.

The Court May Intervene if a Claim in Whole or in Part

  • Does not disclose a reasonable cause of action. The claim sets out the facts properly, but does not pinpoint any law or statute which permits a legal remedy for the situation. An argument in law is impossible.
  • Is immaterial, redundant, or irrelevant.
  • Is prolix (long-winded), dilatory, vague or ambiguous.
  • Is scandalous, frivolous, vexatious, or quarrelsome.
  • Is clearly unfounded, excessive, or unreasonable.
  • Is an improper use of procedure.
  • Contains an irregularity so prejudicial to the claim that it is sufficient to defeat the claim.
  • Restricts freedom of expression in a public debate.
  • May prejudice, embarrass, or delay the fair trial of the action. This refers to striking out selected paragraphs of a claim, not the entire claim.
  • Is otherwise an abuse of the process of the court.

A Statement of Claim must set out allegations of fact which, if true, would in law give rise to the relief sought. Meet this narrow focus and your Claim will not be struck.

When is a Claim Unarguable in Law?

To be struck, a Statement of Claim must be truly unarguable in law. Consider for example A.L. v. Saskatchewan (2008) SKQB 115:

  • This plaintiff wrote a Statement of Claim that was originally 114 pages long, contained more than 700 paragraphs, and named 22 defendants. The facts had a timeline of 34 years.
  • The plaintiff was given leave to amend her Claim. The revision was pared to 60 pages, with 360 paragraphs, but new defendants were added.
  • Opposing counsel filed a Motion to Strike, saying portions of the claim were prolix, immaterial, or irrelevant. The judge asked opposing counsel to enumerate the paragraphs complained of and specify the reasons.
  • After many chamber motions – and many chances – the Claim was finally struck. The Judge said: It was impossible to distill the disparate number of allegations into coherent and material facts on which a cause of action could be based.

This wretched case is instructive. In civil court if you act pro se (represent yourself) and file a Statement of Claim, you may well be given this grand scale of opportunity to amend your Claim and acclimatize yourself to the rules of Court. But know: Judicial patience is often superficial; it does not represent real compassion; unless you learn how to write a succinct and pointed Statement of Claim, the axe will wield in the end.

The Civil Practice Material: Legal Training Course published by the B.C. Law Society tells how a well-written Claim links to the next step in your case:

The importance of proper pleadings cannot be overstated. Pleadings come at an early stage of the litigation, often before all the facts are known, and therefore amendments are liberally granted.

But don't feel safe in quickly writing a civil Claim with the notion it can be cleaned up later, if necessary, by an amendment. This is poor practice: pleadings are the foundation upon which a case is constructed.

At the start, frame your pleadings with care and diligence. The content and logic will determine what is relevant at the discovery stage. Proper pleadings, early, will assist you to compel the appropriate documents and answers at Examinations for Discovery.

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia

Copyright © 2008-2018 Georgena Sil. All Rights Reserved.