What if you are injured in a traffic accident or by medical negligence, with an outcome serious and irreversible? If you look to the law for relief, your first step is to file a Statement of Claim in civil court. Immediately after, the opposing counsel will very likely file a motion to strike your claim. Almost every defendant tries that avoidance tactic with vigor. Now: if a claim is unarguable in law, frivolous, or vexatious it can legitimately be struck. But if your claim is none of those, your opponent will try to strike your claim for other, more speculative reasons. Learn what those reasons are -- and arrive in the courtroom armed with knowledge to protect your claim.
In Canada, the Supreme Court set down parameters for when a Statement of Claim can, and cannot, be struck. A good way to understand this subject is to review the history of how and why the law developed in regard to striking claims. There are several major stepping stones, and each represents a mistake made by claimants in the past which the court had to rule upon. Our review starts in England, where the law of Canada had its origin.
Stage #1 In England in the 1880s, the "plain and obvious" test was codified. With that law on the books, Judges suddenly had the discretion to ensure the court was not used simply to harass parties through initiation of claims that were obviously without merit. The civil procedure we know today is forged from a century of refinements on that theme.
Stage #2 In England circa 1910, the law was revised thus: Judges had the right to stop an action if it was wantonly brought without the shadow of an excuse, when there was no doubt that the action was baseless. But this did not allow summary dismissal of a claim just because the judge in chambers thought the claim would be unsuccessful in the end. The power of halting a claim and deciding it without trial was to be very sparingly used. It was reserved only for claims which were an abuse of legal procedure. Different opinions about law, just as different readings of the facts, were to be decided at a trial. A plaintiff should not be "driven from the judgment seat" without a right to be heard, except where the cause of action was obviously and incontestably bad.
Stage #3 Canada imported the laws from England. The law on striking claims did not change much until the 1960s when the province of Ontario added: The fact that a claim might be novel was no justification for striking out the Statement of Claim. The power to strike out proceedings should be exercised with great care and reluctance.
In the 1960s the province of British Columbia added: So long as a Statement of Claim, as it stood or as it may be amended, disclosed some question fit to be tried by a judge or jury, the mere fact that the case was weak or not likely to succeed was no ground for striking it out. The complexity or novelty of the question the plaintiff wishes to bring to trial should not act as a bar to that trial taking place.
Stage #4 In 1990, the law on striking claims was unified across Canada. The Supreme Court agreed with and consistently upheld the "plain and obvious" test. How is that test applied? When a defendant files a motion to strike a claim, the Judge assumes -- just for a moment, and just for the sake of argument -- that all the facts in the Statement of Claim are proved. Given that best-case scenario, the Judge then asks, if the facts are true, would they disclose a reasonable cause of action? The word "reasonable" has a broad definition: it means a claim with "some chance of success." The plaintiff must not be driven from the judgment seat if there is a chance the claim might succeed.
Summary What you need to know and remember: 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 the case. Only if the action is certain to fail because it contains a radical defect, should the relevant portions of a claim be struck. Even then, the plaintiff should be granted time to amend the Statement of Claim. Of special note: Striking out cannot be justified because a pleading reveals a difficult or important point of law. On the contrary, it may well be critical that such an action be allowed to proceed.
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