Master Schlosser

3.68: Court options to deal with significant deficiencies
5.12: Penalty for not serving affidavit of records
5.5: When affidavit of records must be served

Case Summary

One of the Defendants, Ms. Tory, brought a motion to strike claims for inducing breach of contract and conspiracy against her personally. There was also a related motion for costs for the late service of the Plaintiff’s Affidavit of Records.

Master Schlosser reviewed prior leading authority on striking a claim and noted that the test to strike a claim is whether, after assuming the facts pleaded are true, there is no reasonable prospect of success, with some latitude given to novel claims. Master Schlosser also considered whether the Pleadings from another matter could be submitted for the Court’s consideration on a strike Application. Master Schlosser stated that there is no “bright line” for the material that can be used in support of a Rule 3.68(2)(b) Application, and concluded that using the Pleadings in another matter fell within the acceptable category of materials permitted on a strike motion.

Master Schlosser struck the Plaintiff’s claim as against Ms. Tory, noting that the Plaintiff failed to set out all the elements of inducing breach of contract. Master Schlosser also dismissed the portion of the Application relating to conspiracy. Master Schlosser observed that Rules 5.5 and 5.12 provide timelines for service, and allow costs penalties for the late service of an Affidavit of Records. Master Schlosser noted that there was no reasonable excuse offered for the “very late” Affidavit of Records and, therefore, ordered Costs.

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