graesser j

1.2: Purpose and intention of these rules
3.68: Court options to deal with significant deficiencies

Case Summary

The Defendants sought to strike the Plaintiff’s Statement of Claim pursuant to Rule 3.68, on the grounds that the claim constituted an abuse of process and that it did not disclose a cause of action.

The Court held that although Rule 3.68 is similar to former Rule 129, Rule 3.68 must be “viewed through the lens of the foundational rule, Rule 1.2”. Rule 1.2 provides that the purpose of the new Rules “is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way”. The Court stated that:

Achieving that objective is a balancing act as “fair and just” is not necessarily accomplished in a “timely and cost-effective way”. 

The possible remedies identified by the Court in an Application to strike the Statement of Claim in this case were to strike the claim, grant an Order to amend it, or stay the Action until the outcome of another Action, which dealt with similar issues between similar parties, was resolved. The Court held that, in determining the appropriate remedy, regard must be given to Rule 1.2 and proportionality must be applied to the issues. In light of Rule 1.2, the Court held that the appropriate remedy was to strike particular portions of the claim which constituted an abuse of process. In regard to the argument that the Statement of Claim failed to disclose a cause of action, the Court held that the new Rules have not “modified or lessened the test for striking out pleadings” and the common law on “old” Rule 129 is equally applicable to Rule 3.68.

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