The Defendants applied to strike the Amended Statement of Claim under Rule 3.68, arguing that the Claim was defeated by the defamation doctrine of absolute privilege. The Claim was struck by an Applications Judge. The Plaintiff appealed this decision (the “Appeal”). Justice Silver allowed the Appeal and set aside the Applications Judge’s Order.

The Court applied the test for striking a claim under Rule 3.68(2)(b) if pleadings disclose no reasonable claim (the “Test”), and found that the Claim disclosed an arguable cause of action because it was not “plain and obvious” that the doctrine of absolute privilege attached to the allegations in the Claim.

Citing R v Imperial Tobacco Canada Ltd, 2011 SCC 42, Silver J. commented that striking a claim is an extraordinary remedy that circumvents the Trial process. The purpose of Rule 3.68(2)(b) is to dispose of those claims that have no reasonable chance of success. It is a form of early intervention to ensure the just and proper use of Court resources by “weeding out” “hopeless” claims. Justice Silver further noted that, because of the finality of striking a claim, the Court should not do so unless it is plain and obvious that there is no reasonable basis for the claim. To do otherwise would be unjust.

Justice Silver stated that in applying the Test, the Court must accept the allegations in the claim as true. It must also “err on the side of generosity” to permit novel arguments or evolving areas of law to proceed. The Court is not deciding the final merits of the defamatory Action. Rather, it is deciding whether on its face the Claim is arguable and should therefore proceed.