Is There Anything That Can Be Done to Stop a Small Claims Court Case At An Early Stage?

A Motion to Strike Per Rule 12.02 of the Rules of the Small Claims Court May Bring An Early End to a Small Claims Court Case If a Judge Determines That the Case Lacks a Meaningful Chance of Success.

Understanding the Court Rules For Striking a Pleading Including the General Presumption That the Pleading Is True

Lawsuit Document A Small Claims Court case that plainly and obviously lacks a meaningful chance of success at Trial may be dismissed at an early stage, thereby saving the participants time and costs as well as also saving the court time and taxpayer expense.  The process of bringing a case to an early end involves a Motion to Strike a pleading and is usually used to strike the claim.

The Law
General Principles

Generally, the legal test to determine whether a claim pleading should be struck is described within many cases and was well cited and summarized within the cases of Ahrami v. Ghadrdoust, 2021 ONSC 1548, Larbi v. Canada Revenue Agency, 2021 ONSC 3240, Reao Capital Inc. v. Pano Capital Inc., 2021 ONSC 2799, and Boustany v. Singh, 2021 ONSC 3140, wherein each it was respectively said:

[20]  A pleading must contain a “concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved”: Rule 25.06(1) and Rule 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[21]  The test for determining whether a pleading should be struck was stated by the Supreme Court of Canada in Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 at p. 980, 74 D.L.R. (4th) 321 at p. 336:

[T]he test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C., O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action?  As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. 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 his or her case. [Emphasis added.]

[22]  On a motion to strike out a pleading, the court must accept the facts alleged in the statement of claim as proven unless they are patently ridiculous or incapable of proof, and must read the statement of claim generously with allowance for inadequacies due to drafting deficiencies: Toronto-Dominion Bank v. Deloitte Haskins & Sells (1991), 1991 CanLII 7366 (ON SC), 5 O.R. (3d) 417 at p. 419, 8 C.C.L.T. (2d) 322 (Gen. Div.).

[23]  Also, the court should not, at this stage of the proceedings, dispose of matters of law that are not fully settled in the jurisprudence: R.D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 1991 CanLII 2731 (ON CA), 5 O.R. (3d) 778, at p. 782.

54.  A pleading may be struck if “it discloses no reasonable cause of action”: Rules, r. 21.01(1)(b).

55.  A claim will only be struck “if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action.” It is only if the action is certain to fail that it should be struck. This a high threshold for the Defendant to satisfy: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17; see also Hunt v. Carey, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321, at p. 980.

56.  In considering if there is no reasonable cause of action, the Court must read the pleading generously because “actions that yesterday were deemed hopeless may tomorrow succeed”: Imperial Tobacco, at para. 21; see also Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526, at para. 16.

57.  In considering whether to strike these pleadings, I am mindful of the fact that the Plaintiff is self-represented and likely drafted the pleadings herself.

58.  Rule 25.06(1) of the Rules provides that a pleading shall contain a precise statement of the material facts upon which a party relies but not the evidence by which those facts are to be proved. Bald allegations in support of the pleadings are not sufficient: Deluca v. Canada, 2016 ONSC 3865, at para. 5.

59.  The power to strike out a claim is important to the effective and fair operation of the Courts. “It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial”: Imperial Tobacco, at para. 17.

60.  In Aristocrat Restaurant Ltd. v. Ontario, [2003] O.J. No. 5331 (S.C.), at paras. 18 and 19, Epstein J. stated that a failure to properly establish a cause of action can occur in two ways,

A claim will be found to be legally insufficient when either the allegations it contains do not give rise to a recognized cause of action or it fails to plead the necessary legal elements of an otherwise recognized cause of action.

In order to survive the second type of rule 21.01(1)(b) motion, a plaintiff must, at minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. Vague allegations that make it impossible for an opposing party to reply should be struck.

[12]  The threshold for striking a pleading is high. A pleading will be sustained if there is a “germ” or “scintilla” of a cause of action; and the pleadings are to be read generously: Hugh v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959. However, the statement of claim must contain a concise statement of the material facts on which the party relies for its claim: Burns v. RBC Life Insurance Company, 2020 ONCA 347, 151 O.R. (3d) 209 at para 16.

[13]  To strike a pleading on the grounds that it discloses no cause of action, having assumed that the facts as pleaded have been proven, it must be “plain and obvious” that the claim must fail: Hunt v. Carey Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959.

[66]  The moving party must demonstrate that it is plain, obvious and beyond doubt that the action as pleaded is deficient, discloses no reasonable cause of action, and is certain to fail. Demonstrating that a claim is not sustainable requires a pleadings analysis to determine why the claim is patently ridiculous or incapable of proof. Thus, the law imposes a “very low” threshold to state a claim. A “germ” or “scintilla” of a cause of action will suffice: Prokuron Sourcing Solutions Inc. v Sobeys Inc and Lexmark Canada Inc., 2019 ONSC 7403 at para 2.

...

[69]  The Supreme Court of Canada in Hunt v Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 SCR 959 affirmed the “plain and obvious” test and held that it is “inappropriate to use the Rules” summary procedure to prevent a party from proceeding to trial on the grounds the action raises difficult questions.” Justice Wilson set out the rationale behind the test for striking out a claim:

…assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action?  As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat":

[70]  Thus, the Supreme Court in Hunt held that even if the plaintiff raises a “novel legal proposition” that should not prevent the plaintiff from proceeding with the action.

Motion to Strike

The above cases, among others, address the general principles involved for striking a pleading including the requirement that striking a pleading should occur only where the claim appears plainly and obviously as lacking a reasonable cause of action, meaning the claim is without a legally genuine reason for suing.  In addition to the general principles explained within the above cases, the Small Claims Court mandate of addressing cases in a summary fashion, results in a few additional concerns whereas striking a pleading in Small Claims Court involves Rule 12.02 of the Rules of the Small Claims Court, O. Reg. 258/98 and previous case decisions that produce similar principles with a few nuances.  Specifically, Rule 12.02 states:

Motion to Strike out or Amend a Document

12.02 (1) The court may, on motion, strike out or amend all or part of any document that,

(a)  discloses no reasonable cause of action or defence;

(b)  may delay or make it difficult to have a fair trial; or

(c)  is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.

(2) In connection with an order striking out or amending a document under subrule (1), the court may do one or more of the following:

1.  In the case of a claim, order that the action be stayed or dismissed.

2.  In the case of a defence, strike out the defence and grant judgment.

2.1  In the case of a motion, order that the motion be stayed or dismissed.

3.  Impose such terms as are just.

General Power to Stay, Dismiss Action

(3) The court may, on its own initiative, make the order referred to in paragraph 1 of subrule (2) staying or dismissing an action, if the action appears on its face to be inflammatory, a waste of time, a nuisance or an abuse of the court’s process.

(4) Unless the court orders otherwise, an order under subrule (3) shall be made on the basis of written submissions in accordance with the following procedures:

1.  The court shall direct the clerk to send notice by mail to the plaintiff that the court is considering making the order.

2.  The plaintiff may, within 20 days after receiving the notice, file with the court a written submission, no more than four pages in length, responding to the notice.

3.  If the plaintiff does not file a written submission that complies with paragraph 2, the court may make the order without any further notice to the plaintiff or to any other party.

4.  If the plaintiff files a written submission that complies with paragraph 2, the court may direct the clerk to send a copy of the submission by mail to any other party.

5.  A party who receives a copy of the plaintiff’s submission may, within 10 days after receiving the copy, file with the court a written submission, no more than four pages in length, responding to the plaintiff’s submission, and shall send a copy of the responding submission by mail to the plaintiff, and, on the request of any other party, to that party.

(5) The clerk shall send a copy of an order made under subrule (1) by mail to all the parties as soon as possible after the order is made.

(6) A document required under this rule to be sent by mail shall be mailed in the manner described in subrule 8.07 (1), and is deemed to have been received on the fifth day after it is mailed.

General Power to Stay, Dismiss Motion

(7) The court may, on its own initiative, make the order referred to in paragraph 2.1 of subrule (2) staying or dismissing a motion, if the motion appears on its face to be inflammatory, a waste of time, a nuisance or an abuse of the court’s process.

(8) Subrules (4) to (6) apply, with necessary modifications, to the stay or dismissal of a motion under subrule (7) and, for the purpose, a reference to the plaintiff shall be read as a reference to the moving party.

Clerk to Notify Court

(9) If the clerk becomes aware that an action could be the subject of an order under subrule (3), or that a motion could be the subject of an order under subrule (7), the clerk shall notify the court.

Cases specific to a Motion to Strike a pleading in the Small Claims Court include O’Brien v. The Ottawa Hospital (Civic Campus), 2011 ONSC 231 and Pope v. Sutton Premier Realty (2008) Ltd., 2013 CanLII 56750 wherein each it was respectively said:

[1]  Mr. O’Brien appeals from the decision of Tierney J. dated October 2, 2009 dismissing his action against the Respondents pursuant to r. 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194, on the basis that there was no genuine issue for trial.  The action arose out of the care received by the Appellant at the Ottawa Hospital (Civic Campus) (“Civic Campus”) on February 26, 2009. The gist of the Appellant’s case is that the two named doctors were negligent in failing to diagnose that he had a concussion and that the Hospital was liable vicariously and directly in contract.

[2]  Both the named doctors and the hospital brought motions before Justice Tierney.  The doctors moved under r. 20.01 and the Hospital moved under that rule and under Rules of the Small Claims Court, O. Reg. 258/98, r. 1 and r. 12 and the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 25.  Justice Tierney’s Reasons focus exclusively upon r. 20.01 of the Rules of Civil Procedure.  He reviewed the evidence before him and applied the case law applicable under r. 20.01 as to whether there was a genuine issue for trial.  In particular, the Defendants had delivered an expert report to the effect that the doctors had not fallen below the standard of care and that the Plaintiff had not, in any event, suffered any damages.  The Plaintiff did not deliver any evidence on the motion.  The motions judge did however have, in addition to the Defendants’ expert report, the nursing triage note from February 26 and the records of the Queensway Carleton Hospital from February 28 where the Plaintiff was diagnosed with a concussion.  The nursing note was made at 14:08 and notes that the Plaintiff complained of worsening headache and no loss of consciousness.  The Plaintiff was not seen by Dr Chehadi until 17:50 at which time the doctor recorded that the Plaintiff told him that he did not have a headache, had not lost consciousness and had had no direct trauma to the head.

[3]  The Queensway Carleton Hospital note records that the Plaintiff complained of increasing headache and fatigue.  The diagnosis was concussion.  The Plaintiff relied on this subsequent diagnosis as evidence that the standard was not met two days earlier by the Defendants.  Justice Tierney dealt with this in his Reasons.  The Defendants’ expert opinion had disagreed with this contention and stated that it is impossible for a diagnosis of concussion to be made based on what the Plaintiff told Dr Chehadi, namely that he did not have a headache, and had no direct trauma to the head. His opinion was that the fact that the diagnosis was made two days later was irrelevant to how he presented at the Civic Campus. The Plaintiff submitted that if a CT scan had been done at the Civic Campus as was done at the Queensway Carleton two days later, the correct diagnosis would have been made earlier.  There is no evidentiary basis for this statement.  To the contrary, to the extent that a lay person can tell from the Queensway Carleton Hospital records, the CT scan was done in order to rule out any other more sinister problems. The Defendants’ expert opinion was also to the effect that had the Defendants diagnosed the Plaintiff with a concussion, they would have done exactly what they did in any event, release him with advice to return if a headache developed or he sustained any loss of consciousness. The opinion continued on to note that even assuming there was a delayed diagnosis, no harm occurred to the patient between February 26 and February 28 when the diagnosis was made.

[4]  Based on this record, the motions judge found that there was no genuine for trial and dismissed the claim.

STANDARD OF REVIEW ON SUMMARY JUDGMENT MOTION

[5]  On an appeal from a decision granting summary judgment, the standard of review is correctness on the issue of whether the motions judge applied the appropriate test.  With respect to the judge’s conclusion that the record raised no genuine issue for trial, the standard of review is whether there is a palpable and overriding error. In my view, Justice Tierney applied the correct test on a motion for summary judgment and made no overriding or palpable error in his conclusion that there was no genuine issue for trial.  This is not a case where the court could find that the Defendant doctors were below the standard of care without an expert opinion. Neither the fact of the discrepancy between what the Plaintiff told the nurse several hours before he was seen by Dr Chehadi, nor the subsequent diagnosis made on different information raised a genuine issue for trial on the issue of the standard of care.  Further there was no evidence before the motions judge capable of raising a genuine issue for trial that the Plaintiff had sustained any damages in any event.  Accordingly, the motion judge reached the correct decision on a motion brought pursuant to r. 20.01 of the Rules of Civil Procedure.

VAN DE VRANDE v BUTKOWSKY (2010), 2010 ONCA 230 (CanLII), 99 OR (3d) 641 (Ont. C.A.) (QL)

[6]  This decision of the Ontario Court of Appeal was released on March 30, 2010, several months after the Judgment under appeal.  In it, the court held that the procedure of a motion for summary judgment is not available under the Rules of the Small Claims Court.  In that case, the motion had actually been brought under r. 1.03(2) and 12.02 of the Rules of the Small Claims Court which provide as follows:

1.03  (2)  If these rules do not cover a matter adequately, the court may give directions and make any order that is just, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the action and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

12.02  (1)  The court may, on motion, strike out or amend all or part of any document that,

(a) discloses no reasonable cause of action or defence;

(b) may delay or make it difficult to have a fair trial; or

(c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.

(2)  In connection with an order striking out or amending a document under subrule (1), the court may do one or more of the following:

1. In the case of a claim, order that the action be stayed or dismissed.

2. In the case of a defence, strike out the defence and grant judgment.

3. Impose such terms as are just.

[7]  The motion judge granted the motion and dismissed the action.  On appeal to the Divisional Court, that court set aside the dismissal by applying jurisprudence developed under r. 20 the Rules of Civil Procedure.  The Court of Appeal reinstated the dismissal granted by the motion judge.

[8]  In so ruling, the Court of Appeal discussed the nature of r. 12.02 of the Rules of the Small Claims Court at paragraphs 14, 17, 18, 19, 20 and 21:

[14] Rule 12.02 of the Small Claims Court Rules allows a party to bring a motion to strike a document, including a claim, before trial. It is therefore more akin to a Rule 21 motion than a Rule 20 motion. It is, however, worded differently than any of Rules 20, 21 or 76 of the Rules of Civil Procedure.

[17] There are several important differences between rule 21.01 of the Rules of Civil Procedure and rule 12.02 of the Small Claims Court Rules. First, where a Rule 21 motion can be brought to strike a pleading, a rule 12.02 motion can be brought to strike any document. Second, the prohibition on admitting evidence contained in rule 21.01(2) is absent from rule 12.02. Third, where rule 21.01(3) allows an action to be struck on the very narrow grounds of its being frivolous, vexatious or an abuse of process, rule 12.02(1)(c) adds the criteria of inflammatory, waste of time and nuisance.

[18] Further, rule 12.02 applies in a somewhat different context than the Rules of Civil ProcedureSection 25 of the Courts of Justice Act provides that in Small Claims Court proceedings, the court is to "hear and determine in a summary way all questions of law and fact". The court can make "such order as is considered just and agreeable to good conscience". In addition, rule 1.03(1) of the Small Claims Court Rules provides that the rules shall be "liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merit in accordance with s. 25 of the Courts of Justice Act".

[19] Conceptually, I view rule 12.02 as being situated somewhere between the Rules 20 and 21 of the Rules of Civil Procedure. It is not a summary judgment motion involving extensive affidavits and a requirement such as contemplated in Rule 20 of the Rules of Civil Procedure where the responding party must put his "best foot forward". It is more akin to a Rule 21 motion, although it is worded more broadly and does not have the same prohibition on the filing of affidavit evidence. It is a motion that is brought in the spirit of the summary nature of Small Claims Court proceedings and involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be "inflammatory", a "waste of time" or a "nuisance".

[20] In my view, the references to actions that are inflammatory, a waste of time or a nuisance was intended to lower the very high threshold set by rule 21.01(3)(d)'s reference to actions that are frivolous, vexatious or an abuse of process.

[21] It bears remembering that rule 12.02 motions will often be brought and responded to by self-represented litigants who lack the extensive training of counsel. The test to be applied on such a motion ought to reflect this, and avoid the somewhat complex case law that has fleshed out the Rules of Civil Procedure.

[9]  Both parties rely upon this decision.  The Appellant submits that since r. 20 of the Rules of Civil Procedure does not apply in the Small Claims Court, Justice Tierney’s decision based on that Rule should be set aside.  The Respondents submit that the findings and analysis made by Tierney J. combined with other curative rules applicable to the Small Claims Court are sufficient to sustain his decision on appeal.

[10]  In this regard, the Appeal Court in Van de Vrande, supra, excused the motion judge for referring to the motion before her as a motion for summary judgment and for failing to indicate the specific provision of r. 12.02 that she was relying on:

[22] In the matter before us, the motion judge correctly referred to and applied rule 12.02 in deciding the issue before her. Unfortunately, at one point she erroneously referred to the motion as one for summary judgment. This is likely due to the appellant having mislabelled his motion in this way. I do not, however, consider this error as undermining her analysis and conclusion.

[26] Although the motion judge did not indicate the specific provision of rule 12.02(1) that she was applying, it is apparent that, after making her findings, the claim could properly be viewed as a "waste of time" and struck pursuant to rule 12.02(1)(c).

[11]  The curative rules relied upon by the Respondents are r. 2.01 and r. 2.02 which state:

2.01  A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute.

2.02  If necessary in the interest of justice, the court may dispense with compliance with any rule at any time.

[12]  There is one case on point that has been decided after Van de Vrande, supraDiler v Uppal, [2010] O.J. No. 1903 is a decision of Deputy Judge Winny.  She stated at ¶19 and 20:

19  I do not read that case as holding that the appropriate test is whether the plaintiff's claim has "no chance of success". Those were the motions judge's words in that case and the Court of Appeal simply upheld the result. I read the decision as holding that the test is somewhat less onerous than that, based on the finding of Rouleau J.A. (at para. 21) that the test under SCCR rule 12.02(1) should be "lower" than that under rule 21.01(3)(d) of the Rules of Civil Procedure.

20  In my view, the court's intent was to fix a lower test for a motion under SCCR rule 12.02(1) than that which would apply under Rules 20 or 21 of the Rules of Civil Procedure, which is to say lower than would apply at that point somewhere between those two rules where SCCR rule 12.02(1) was found to be conceptually situated. The rationale for that position was based on the summary nature of Small Claims Court proceedings, which often involve self-represented litigants.

[13]  Deputy Justice Winny went on to dismiss the action before her, finding that so doing was just and agreeable to good conscience, that the claim had no meaningful chance of success and its dismissal at trial was effectively a foregone conclusion so that permitting the trial to continue would be a waste of time within the meaning of r. 12.02(1)(c).  She also noted that opinion evidence is properly admissible in a r. 12.02 motion seeking dismissal of a professional malpractice claim.

ANALYSIS

[14]  A review of Justice Tierney’s decision reveals that the Appellant‘s case has no meaningful chance of success at trial.  The defects are that the Appellant has no expert opinion on the standard of care issue and no stated intention of obtaining one in a case where an opinion is necessary for success. He has demonstrated no evidentiary foundation for any damages whatever. The law in Ontario is against him as to any vicarious liability of the hospital for the doctors, even assuming they had fallen below the standard of care.  In submissions on appeal, the Appellant stated that there were disputed facts as to what had been said between him and Dr Chehadi but there is nothing in the record before the motion judge or this court to indicate what those disputed facts might be.  The Appellant also referred to his alternate allegation of breach of contract by the hospital.  This claim asserts that the hospital owed the Appellant a duty to insure that the doctors working there provided services in a competent and nondiscriminatory way.  The Appellant felt that Dr Chehadi profiled him as a homeless person and therefore provided below standard service to him. Again the allegation is made but the Appellant has not provided any foundation that would show any merit to the claim.  He does not specify what the hospital did or did not do in terms of its policies or procedures that could amount to a breach of contract with the Appellant.  Although the Appellant details questions Dr Chehadi asked him about alcohol consumption, even assuming these facts in his favour, there is still no basis to support any damages arising from the questions being asked.

[15]  In addition, when asked, the Appellant was unable to say how or whether he would have handled the motion any differently if he had been arguing it under r. 12.02 of the Rules of the Small Claims Court rather the r. 20.01 of the Rules of Civil Procedure.

[16]  Finally the Hospital did identify in its notice of motion before Justice Tierney that it was relying on r. 1.03 and 12.02 of the Rules of Small Claims Court.  In my view, for the reasons given by Tierney J., on a proper application of those Rules, the Respondents were entitled to have the action dismissed.  The claims are a waste of time within the meaning of r. 12.02 because they have no meaningful chance of success at trial.  Similarly, were the appeal allowed, it would also be a waste of time for the Respondents to renew their same motion under r. 12.02 because the outcome would be the same.  For these reasons, the appeal is dismissed.

17)  The test for striking claims is well established by the Supreme Court of Canada in Hunt v. Carey Canada, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959. As noted by the Supreme Court of Canada in Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), [2003] 3 SCR 263 Estate:

An excellent statement of the test for striking out a claim under such provisions is that set out by Wilson J. in Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980:

. . . assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action?  As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. 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 his or her case. Only if the action is certain to fail because it contains a radical defect . . . should the relevant portions of a plaintiff’s statement of claim be struck out . . . .

The test is a stringent one. The facts are to be taken as pleaded. When so taken, the question that must then be determined is whether there it is “plain and obvious” that the action must fail. It is only if the statement of claim is certain to fail because it contains a “radical defect” that the plaintiff should be driven from the judgment. See also Attorney General of Canada v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735.

18)  The question, before me is whether the Hunt test applies in it full vigour in an application brought under Rule 12 of the Small Claims Rules (hereafter the “Rules”).

19)  Rule 12 reads:

12.02 (1) The court may, on motion, strike out or amend all or part of any document that,

(a) discloses no reasonable cause of action or defence;

(b) may delay or make it difficult to have a fair trial; or

(c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process. O. Reg. 78/06, s. 26.

(2) In connection with an order striking out or amending a document under subrule (1), the court may do one or more of the following:

1. In the case of a claim, order that the action be stayed or dismissed.

2. In the case of a defence, strike out the defence and grant judgment.

3. Impose such terms as are just. O. Reg. 78/06, s. 26

20)  In Van de Vrande v. Butkowsky, supra, the Ontario Court of Appeal although in the context of summary motions, addressed the appropriate process for motions to strike. They are to be brought under Rule 12.02. After reviewing the differences between Rule 21 of the Rules of Civil Procedure and r. 12 of the Rules, Rouleau JA, for the court said:

Conceptually, I view rule 12.02 as being situated somewhere between the Rules 20 and 21 of the Rules of Civil Procedure. It is not a summary judgment motion involving extensive affidavits and a requirement such as contemplated in Rule 20 of the Rules of Civil Procedure where the responding party must put his "best foot forward". It is more akin to a Rule 21 motion, although it is worded more broadly and does not have the same prohibition on the filing of affidavit evidence. It is a motion that is brought in the spirit of the summary nature of Small Claims Court proceedings and involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be “inflammatory", a "waste of time" or a "nuisance".

In my view, the references to actions that are inflammatory, a waste of time or a nuisance was intended to lower the very high threshold set by rule 21.01(3)(d)'s reference to actions that are frivolous, vexatious or an abuse of process. It bears remembering that rule 12.02 motions will often be brought and responded to by self represented litigants who lack the extensive training of counsel. The test to be applied on such a motion ought to reflect this, and avoid the somewhat complex case law that has fleshed out the Rules of Civil Procedure. [page647]

It is noteworthy, that in a Rule 12.02 proceeding evidence may be admitted to support the emotion and that the Rule apart from the ground that the claim does not disclose a reasonable cause of action it adds 12.02(1)c that the document which in my view includes a claim is “inflammatory, a waste of time, a nuisance or an abuse of the courts process

21)  Rule 12 was further considered by Madame Justice Mackinnon in O'Brien v. Ottawa Hospital (Civic Campus), 2011 ONSC 231. After reviewing the decision of the Court of Appeal in Butkowsly, Justice Mackinnon, quotes with apparent approval the decision of Winny DJ in Diler v Uppal, [2010] O.J. No. 1903:

Deputy Justice Winny went on to dismiss the action before her, finding that so doing was just and agreeable to good conscience, that the claim had no meaningful chance of success and its dismissal at trial was effectively a foregone conclusion so that permitting the trial to continue would be a waste of time within the meaning of r. 12.02(1)(c). She also noted that opinion evidence is properly admissible in a r. 12.02 motion seeking dismissal of a professional malpractice claim.

22)  Thus, it would appear that on a motion to strike under r. 12 of the Rules, not only a less stringent test may be applied but apart from the statement of claim, additional facts properly before the court may be relied on.

23)  The impact of the Court of Appeal’s decision is to conflate the three subsections of Rule 12 and if on motion and evidence properly before the court the court concludes that the claim should be struck under any of the three subsections of Rule 12.02, it may proceed to do so. As always, the burden is on the moving party to satisfy the court that a motion to strike the claim is appropriate. That burden, though not as high as anticipated by Hunt, supra, is nonetheless a heavy one.

24)  However, under this approach some affidavit evidence may be heard, since often it cannot be determined whether the action is a waste of time or an abuse without having the assistance of the factual context, for example a previous proceeding that decided the same issue.

25)  However, I do not believe that the Court of Appeal in Van de Vrande v. Butkowsky, supra intended to altogether eliminate the test in Hunt, supra, or intended that a mini trial take place at the motion to strike stage under Rule 12. Rather, in the unique statutory environment of the Small Claims Court and the purpose of the court to render speedy justice, evidence is allowed at this stage to fully explain the underlying facts of the claim in order for the court to fully appreciate the claim and its weaknesses. However, as in Hunt, a heavy burden remains with the moving party in order for it to succeed in striking the claim. That ensures, that the principles underlying Hunt are not altogether ignored, and the plaintiff is not driven from the judgment seat at this early stage of the proceedings. To quote Wilson J. in Hunt As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat".

26)  In the case before me, I consider that the motion properly falls under both Rule12.02(1)(a) and (1)(c), and it would be a “waste of time” to allow this action to proceed any further against these defendants.

As explained in O'Brien and Pope, with both cases citing Van de Vrande v. Butkowski, 2010 ONCA 230, a Motion to Strike per Rule 12.02 of the Rules of the Small Claims Court is similar, yet distinctive, from the Rule 20 and Rule 21 processes within the Rules of Civil Procedure.  In particular, a Rule 12.02 process is often mistakenly referred to as a Motion for Summary Judgment thereby implying or suggesting that Rule 12.02 is the Small Claims Court equivalent to Rule 20 in higher Superior Court matters.  Instead, Rule 12.02 should be understood as performing a very different function whereas Rule 20 determines a case on the merits, being whether the evidence and case is so strong that a Trial is unnecessary because the outcome can be determined without a Trial; however, Rule 12.02 is used to do the opposite by reviewing whether a case is so weak that a Trial is unnecessary because the case lacks any meaningful chance of success.  This perspective was well explained by the Divisional Court on Appeal from the Small Claims Court within the case of Elguindy v. St. Joseph’s Health Care London, 2017 ONSC 5360 where it was said:

[7]  In Van De Vrande v Butkowsky[1], the Court of Appeal made clear that a rule 12.02 motion to dismiss under the Small Claims Court Rules is not equivalent or analogous to a rule 20 summary judgment motion under the Rules of Civil Procedure.  Rouleau J.A. for the court held “it is neither useful nor appropriate to apply the jurisprudence emanating from the application of Rules 20 and 76 of the Rules of Civil Procedure to assist in the interpretation of rule 12.02 of the SCC rules.

[8]  As noted by Rouleau JA, in a Small Claims Court proceeding, the court is to “hear and determine in a summary way all questions of law and fact” and can make “such order as is considered just and agreeable to good conscience” in accordance with the direction that the rules shall be “liberally construed to secure the just, most expeditious and lease expensive determination of every proceeding on its merit.[2]

[9]  Further, the wording of rule 12.02 is not an actual determination on the merits, but rather:  “it is a motion that is brought in the spirit of the summary nature of Small Claims Court proceedings and involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be ‘inflammatory, a waste of time or a nuisance.[3]

Summary Comment

The Rules of Small Claims Court include Rule 12.02 which may enable a Motion to Strike and result in a dismissal of a Small Claims Court case at an early stage if the court deems that the case is without a meaningful chance of success at Trial.  Essentially, a Small Claims Court judge will review the allegations, and for the purpose of the Motion to Strike will presume the allegations as true unless patently ridiculous, and the judge will determine whether if all allegations are actually proven at Trial where the case would be successful.  Where the judge deems that, with all allegations proven at Trial, the case would be without a meaningful chance of success, the judge may, and likely should, dismiss the case.

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