The Canadian Food Inspection Agency (“CFIA”) discovered a soil borne pest on the Plaintiffs’ property and imposed restrictions on the production and sale of potatoes by the Plaintiffs. The CFIA was subsequently unable to replicate the original test results finding a pest; however, it continued to restrict the Plaintiffs from producing and selling potatoes. The Plaintiffs commenced an Action against the CFIA, its laboratory and the Crown, alleging negligence which resulted in significant financial losses. The Defendants brought an Application to strike the Statement of Claim or, in the alternative, for Summary Dismissal.

Master Schulz summarized the test for striking a Statement of Claim: whether, based on the Pleadings, there is a reasonable prospect that the claim will succeed, erring on the side of generosity to permit novel claims to proceed. Master Schulz considered the Pleadings and held that the Statement of Claim should not be struck on the basis that there was a reasonable prospect that the claim could succeed and there were novel but arguable claims which should be fully heard. Additionally, Master Schulz noted that the Pleadings had not yet closed and granted leave to amend the Statement of Claim to add further particulars.

Master Schulz next considered the questions to be answered on a Summary Dismissal Application as summarized from prior leading authorities: can a decision be made that is fair and just to both parties on the existing record; and, when viewed in the whole, is there sufficient merit to the Claim to require a Trial, or is the likelihood that the defence will succeed so high that the matter should be summarily determined? Merit in the context of Summary Judgment should be distinguished from the test for striking Pleadings under Rule 3.68. Master Schulz determined that Summary Dismissal was inappropriate in the circumstances since both parties had raised questions and issues which required a Trial.