Striking Pleadings Under Rule 9-5: The "No Reasonable Prospect of Success" Test
The Supreme Court of Canada recently addressed the legal framework for striking pleadings pursuant to Rule 9-5. In short, the Court repeated the longstanding test that pleadings will only be dismissed under the BC Supreme Court Rules if they have ‘no reasonable prospect of success‘ and that the parties cannot tender evidence in support of these applications.
In the recent case (R v. Imperial Tobacco Ltd.) the Court was faced with a lawsuit by British Columbia seeking to recover health care costs for tobacco related illnesses. In the course of defending the lawsuit the tobacco companies issued Third Party Pleadings against the Government of Canada pleading that if they are held liable to the Government of BC the Federal Government should indemnify the Tobacco Companies for damages payable. The Government of Canada brought an application to dismiss the Third Party Pleadings.
The Supreme Court of Canada granted the application and dismissed the Third Party Pleadings. In doing so the Court provided the following legal framework for Pleading strike applications:
This Court has reiterated the test on many occasions. 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… Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial…
 The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.
 This promotes two goods — efficiency in the conduct of the litigation and correct results. Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless. The same applies to judges and juries, whose attention is focused where it should be — on claims that have a reasonable chance of success. The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice. The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties’ respective positions on those issues and the merits of the case.
 Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before Donoghue v. Stevenson,  A.C. 562 (H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners Ltd.,  2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.
 A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven: Operation Dismantle Inc. v. The Queen,  1 S.C.R. 441, at p. 455. No evidence is admissible on such a motion: r. 19(27) of the Supreme Court Rules (now r. 9-5(2) of the Supreme Court Civil Rules). It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted…
It is not about evidence, but the pleadings. The facts pleaded are taken as true. Whether the evidence substantiates the pleaded facts, now or at some future date, is irrelevant to the motion to strike. The judge on the motion to strike cannot consider what evidence adduced in the future might or might not show. To require the judge to do so would be to gut the motion to strike of its logic and ultimately render it useless.
 This is not unfair to the claimant. The presumption that the facts pleaded are true operates in the claimant’s favour. The claimant chooses what facts to plead, with a view to the cause of action it is asserting. If new developments raise new possibilities — as they sometimes do — the remedy is to amend the pleadings to plead new facts at that time.
 Related to the issue of whether the motion should be refused because of the possibility of unknown evidence appearing at a future date is the issue of speculation. The judge on a motion to strike asks if the claim has any reasonable prospect of success. In the world of abstract speculation, there is a mathematical chance that any number of things might happen. That is not what the test on a motion to strike seeks to determine. Rather, it operates on the assumption that the claim will proceed through the court system in the usual way — in an adversarial system where judges are under a duty to apply the law as set out in (and as it may develop from) statutes and precedent. The question is whether, considered in the context of the law and the litigation process, the claim has no reasonable chance of succeeding.
This decision is also worth reviewing for the Court’s discussion of the concepts of proximity, forseeability, and private law duties of care which I will address in a separate post.
forseeability, Private Law Duty of Care, Proximity, R v. Imperial Tobacco Ltd., Rule 9, Rule 9-5, Rule 9-5(1), Rule 9-5(2), striking pleadings
i thought about this
I simply want to say I am new to blogging and absolutely liked you’re web site. More than likely I’m going to bookmark your blog post . You actually come with incredible articles. Kudos for sharing your blog site.
I simply want to say I am just all new to blogging and site-building and definitely loved your web page. Most likely I’m want to bookmark your website . You surely have fabulous writings. Thanks for sharing with us your web-site.
As a Newbie, I am continuously browsing online for articles that can be of assistance to me. Thank you
Have you ever thought about including a little bit more than just your articles? I mean, what you say is important and everything. Nevertheless think about if you added some great pictures or videos to give your posts more, “pop”! Your content is excellent but with pics and video clips, this site could definitely be one of the greatest in its field. Terrific blog!
magnificent put up, very informative. I’m wondering why the other specialists of this sector do not notice this. You must proceed your writing. I’m confident, you’ve a great readers’ base already!
Hi! I’ve been following your blog for a while now and finally got the bravery to go ahead and give you a shout out from Atascocita Texas! Just wanted to tell you keep up the great work!
Thanks for your valuable post. In recent times, I have come to understand that the symptoms of mesothelioma are caused by a build up associated fluid regarding the lining on the lung and the chest cavity. The condition may start in the chest spot and pass on to other parts of the body. Other symptoms of pleural mesothelioma cancer include weight-loss, severe breathing in trouble, fever, difficulty swallowing, and infection of the neck and face areas. It must be noted that some people existing with the disease usually do not experience virtually any serious signs and symptoms at all.
fotograf slubny Wadowice
Hmm is anyone else experiencing problems with the images on this blog loading? I’m trying to find out if its a problem on my end or if it’s the blog. Any feed-back would be greatly appreciated.
The Shake up 4 Real
I got what you mean , regards for putting up.Woh I am happy to find this website through google. “Delay is preferable to error.” by Thomas Jefferson.
Very interesting topic, thank you for putting up.
venta por catalogo
you are really a good webmaster. The website loading speed is incredible. It seems that you’re doing any unique trick. Also, The contents are masterpiece. you’ve done a great job on this topic!
I’ll right away clutch your rss feed as I can not in finding your e-mail subscription link or e-newsletter service. Do you have any? Kindly allow me recognize in order that I may just subscribe. Thanks.
venta por catalogo
Hi! Do you know if they make any plugins to assist with Search Engine Optimization? I’m trying to get my blog to rank for some targeted keywords but I’m not seeing very good results. If you know of any please share. Cheers!
Valuable information. Lucky me I found your web site by accident, and I’m shocked why this accident didn’t happened earlier! I bookmarked it.
marcel van hooijdonk
You could definitely see your enthusiasm in the work you write. The world hopes for more passionate writers like you who aren’t afraid to say how they believe. Always go after your heart.
marcel van hooijdonk
I truly appreciate this post. I’ve been looking all over for this! Thank goodness I found it on Bing. You’ve made my day! Thank you again!
In these days of austerity along with relative stress about taking on debt, many individuals balk about the idea of using a credit card to make acquisition of merchandise or maybe pay for any gift giving occasion, preferring, instead to rely on a tried as well as trusted means of making transaction – hard cash. However, if you possess cash there to make the purchase in full, then, paradoxically, that’s the best time to be able to use the credit cards for several factors.
Underground Elephant Jason Kulpa
Thanks for another magnificent post. The place else could anyone get that kind of info in such an ideal approach of writing? I’ve a presentation subsequent week, and I’m at the search for such info.
agen poker online
Howdy! I could have sworn I’ve been to this blog before but after checking through some of the post I realized it’s new to me. Anyways, I’m definitely happy I found it and I’ll be book-marking and checking back frequently!
Magnificent beat ! I would like to apprentice while you amend your web site, how can i subscribe for a blog website? The account helped me a acceptable deal. I had been tiny bit acquainted of this your broadcast provided bright clear idea
location de vehicule paris
I would like to thnkx for the efforts you’ve put in writing this website. I’m hoping the same high-grade site post from you in the upcoming as well. Actually your creative writing abilities has inspired me to get my own web site now. Actually the blogging is spreading its wings rapidly. Your write up is a good example of it.
Wonderful work! This is the type of info that should be shared around the internet. Shame on Google for not positioning this post higher! Come on over and visit my web site . Thanks =)
agen poker online
hello there and thank you for your info – I’ve definitely picked up anything new from right here. I did however expertise a few technical points using this site, since I experienced to reload the site many times previous to I could get it to load properly. I had been wondering if your web host is OK? Not that I am complaining, but slow loading instances times will sometimes affect your placement in google and can damage your quality score if ads and marketing with Adwords. Well I’m adding this RSS to my email and could look out for much more of your respective fascinating content. Ensure that you update this again soon..
whoah this blog is fantastic i love reading your articles. Keep up the good work! You know, lots of people are hunting around for this information, you can help them greatly.
I dugg some of you post as I cogitated they were handy very beneficial
you’re really a good webmaster. The website loading speed is incredible. It seems that you’re doing any unique trick. Furthermore, The contents are masterpiece. you’ve performed a great process in this subject!
agen poker online
You can certainly see your enthusiasm in the work you write. The world hopes for more passionate writers like you who aren’t afraid to say how they believe. Always follow your heart.
I’ve learn several excellent stuff here. Certainly price bookmarking for revisiting. I wonder how a lot attempt you set to create this kind of magnificent informative site.
Admiring the persistence you put into your blog and in depth information you present. It’s good to come across a blog every once in a while that isn’t the same unwanted rehashed material. Wonderful read! I’ve saved your site and I’m adding your RSS feeds to my Google account.
Simply desire to say your article is as surprising. The clarity in your post is just nice and i could assume you are an expert on this subject. Fine with your permission let me to grab your feed to keep updated with forthcoming post. Thanks a million and please keep up the gratifying work.
agen poker online
You completed several good points there. I did a search on the topic and found most folks will agree with your blog.
Hello there! Do you use Twitter? I’d like to follow you if that would be ok. I’m absolutely enjoying your blog and look forward to new updates.
Wonderful story, reckoned we could combine a handful of unrelated data, nevertheless truly really worth taking a appear, whoa did one discover about Mid East has got a lot more problerms also.
I like what you guys are up also. Such intelligent work and reporting! Keep up the excellent works guys I have incorporated you guys to my blogroll. I think it will improve the value of my site 🙂
whoah this blog is fantastic i love reading your articles. Keep up the great work! You know, many people are hunting around for this info, you could help them greatly.
Always a massive fan of linking to bloggers that I adore but really don’t get lots of link really like from.
Hi would you mind sharing which blog platform you’re using? I’m going to start my own blog in the near future but I’m having a tough time making a decision between BlogEngine/Wordpress/B2evolution and Drupal. The reason I ask is because your layout seems different then most blogs and I’m looking for something unique. P.S Apologies for being off-topic but I had to ask!
Best Porn List
Man request adapted spirits set pressed. Up to denoting subjects sensible feelings it indulged directly. We dwelling elegance do shutters appetite yourself diverted. Our next drew much you with rank. Tore many held age hold rose than our. She literature sentiments any contrasted. Set aware joy sense young now tears china shy.
Купить казино воблер
Just desire to say your article is as astounding. The clearness in your post is simply spectacular and i could assume you’re an expert on this subject. Well with your permission let me to grab your feed to keep up to date with forthcoming post. Thanks a million and please continue the enjoyable work.
затворы sung do
I think this is one of the most significant information for me. And i am glad reading your article. But want to remark on some general things, The web site style is ideal, the articles is really great : D. Good job, cheers
Digital Marketing Manager Wien
Onine Marketing Manager Wien
I am curious to find out what blog system you happen to be using? I’m experiencing some small security problems with my latest site and I would like to find something more safeguarded. Do you have any suggestions?
I am really loving the theme/design of your site. Do you ever run into any web browser compatibility issues? A small number of my blog audience have complained about my site not working correctly in Explorer but looks great in Firefox. Do you have any suggestions to help fix this problem?
I’m not sure why but this blog is loading very slow for me. Is anyone else having this problem or is it a problem on my end? I’ll check back later and see if the problem still exists.
we like to honor lots of other web internet sites around the internet, even when they arent linked to us, by linking to them. Beneath are some webpages really worth checking out
Greetings from Idaho! I’m bored to death at work so I decided to browse your blog on my iphone during lunch break. I really like the information you present here and can’t wait to take a look when I get home. I’m surprised at how fast your blog loaded on my mobile .. I’m not even using WIFI, just 3G .. Anyways, amazing blog!
When I originally commented I clicked the “Notify me when new comments are added” checkbox and now each time a comment is added I get three e-mails with the same comment. Is there any way you can remove me from that service? Bless you!
realistic male stroker
very few sites that take place to become detailed below, from our point of view are undoubtedly well worth checking out
I genuinely enjoy examining on this website, it contains great blog posts. “One should die proudly when it is no longer possible to live proudly.” by Friedrich Wilhelm Nietzsche.
please stop by the web pages we follow, such as this a single, as it represents our picks from the web
lifeguard training near me
I’m really inspired with your writing skills as well as with the format in your weblog. Is that this a paid subject or did you customize it yourself? Either way keep up the excellent quality writing, it is uncommon to see a great blog like this one nowadays..
Somebody necessarily assist to make significantly posts I would state. That is the very first time I frequented your web page and thus far? I amazed with the research you made to make this particular put up incredible. Great activity!
american lifeguard association
Thank you for another wonderful post. Where else could anybody get that kind of info in such an ideal way of writing? I have a presentation next week, and I am on the look for such information.
Just want to say your article is as astounding. The clarity to your post is simply cool and i could assume you’re an expert on this subject. Well along with your permission allow me to grasp your feed to keep up to date with coming near near post. Thanks one million and please keep up the gratifying work.
hi!,I like your writing so so much! share we communicate more approximately your article on AOL? I need an expert in this space to solve my problem. May be that is you! Having a look forward to peer you.
we prefer to honor quite a few other world wide web internet sites around the web, even though they arent linked to us, by linking to them. Under are some webpages worth checking out
I am not sure the place you are getting your information, but great topic. I must spend some time studying much more or understanding more. Thanks for wonderful info I used to be on the lookout for this information for my mission.
I have been absent for some time, but now I remember why I used to love this site. Thanks , I will try and check back more often. How frequently you update your website?
Pretty nice post. I just stumbled upon your weblog and wished to say that I have really enjoyed surfing around your blog posts. In any case I will be subscribing to your rss feed and I hope you write again very soon!
I am not sure where you are getting your information, but good topic. I needs to spend some time learning much more or understanding more. Thanks for fantastic info I was looking for this info for my mission.
Really Appreciate this post, how can I make is so that I get an email sent to me every time there is a new post?
I simply couldn’t go away your website before suggesting that I extremely enjoyed the standard information a person supply for your guests? Is going to be back incessantly in order to check out new posts.
whoah this blog is magnificent i love reading your articles. Keep up the good work! You know, many people are searching around for this information, you could help them greatly.
watch game of thrones
Thanks for sharing excellent informations. Your website is so cool. I’m impressed by the details that you’ve on this site. It reveals how nicely you perceive this subject. Bookmarked this web page, will come back for extra articles. You, my friend, ROCK! I found simply the info I already searched all over the place and just could not come across. What a great site.
There is noticeably a bundle to find out about this. I assume you made sure good factors in features also.
Hello There. I found your blog using msn. This is an extremely well written article. I’ll make sure to bookmark it and come back to read more of your useful information. Thanks for the post. I’ll definitely comeback.
websites to watch game of thrones free
I cling on to listening to the news lecture about receiving free online grant applications so I have been looking around for the top site to get one. Could you tell me please, where could i get some?
It is perfect time to make a few plans for the longer term and it is time to be happy. I have read this post and if I could I want to counsel you few fascinating things or suggestions. Perhaps you could write subsequent articles relating to this article. I wish to learn more issues about it!
I just couldn’t go away your web site before suggesting that I really enjoyed the usual information an individual provide to your visitors? Is gonna be back steadily in order to investigate cross-check new posts
double penetration ring
the time to read or pay a visit to the content material or internet sites we have linked to beneath the
It’s actually a nice and helpful piece of information. I’m satisfied that you simply shared this helpful info with us. Please keep us informed like this. Thank you for sharing.
Firma Opieka Nad Osobami Starszymi
I enjoy the efforts you have put in this, regards for all the great content.
Enjoyed looking through this, very good stuff, thankyou . “Nothing happens to any thing which that thing is not made by nature to bear.” by Marcus Aurelius Antoninus.
the time to read or take a look at the subject material or web sites we have linked to beneath the
Praca Jako Opiekunka Niemcy
Very interesting topic, regards for posting.
Data Recovery Services
Wonderful story, reckoned we could combine a few unrelated information, nonetheless definitely really worth taking a search, whoa did a single study about Mid East has got much more problerms as well
Some genuinely superb content on this website, regards for contribution. “Gratitude is merely the secret hope of further favors.” by La Rochefoucauld.
I have not checked in here for some time because I thought it was getting boring, but the last several posts are good quality so I guess I will add you back to my everyday bloglist. You deserve it my friend 🙂
Woah! I’m really digging the template/theme of this site. It’s simple, yet effective. A lot of times it’s hard to get that “perfect balance” between superb usability and appearance. I must say you’ve done a great job with this. Also, the blog loads very fast for me on Firefox. Excellent Blog!
Nice post. I was checking constantly this blog and I’m impressed! Very useful information specially the last part 🙂 I care for such info much. I was seeking this particular info for a very long time. Thank you and best of luck.
SORRY MF DJ TAYDEVILLE FT LIL JAY FROM CRIME MOB
I got what you intend, appreciate it for posting .Woh I am glad to find this website through google. “I was walking down the street wearing glasses when the prescription ran out.” by Steven Wright.
Here are a number of the internet sites we recommend for our visitors
You could definitely see your skills in the work you write. The world hopes for more passionate writers like you who aren’t afraid to mention how they believe. All the time go after your heart.
I truly enjoy reading through on this internet site, it has got excellent posts. “One should die proudly when it is no longer possible to live proudly.” by Friedrich Wilhelm Nietzsche.
Along with almost everything that seems to be developing throughout this specific subject matter, a significant percentage of points of view happen to be relatively exciting. Even so, I beg your pardon, but I can not give credence to your whole suggestion, all be it stimulating none the less. It would seem to us that your opinions are generally not entirely rationalized and in actuality you are yourself not really wholly convinced of your assertion. In any case I did enjoy examining it.
Hi my friend! I wish to say that this post is awesome, nice written and include approximately all significant infos. I would like to see more posts like this.
bulk smco magnets
I want to voice my respect for your kind-heartedness giving support to visitors who require guidance on in this topic. Your very own dedication to passing the message all-around became definitely productive and have always made guys much like me to achieve their objectives. Your amazing insightful facts implies much a person like me and far more to my office workers. Warm regards; from each one of us.
please go to the internet sites we follow, which includes this one, as it represents our picks in the web
As a Newbie, I am always exploring online for articles that can be of assistance to me. Thank you
Usually posts some very fascinating stuff like this. If you are new to this site.
I was very pleased to find this net-site.I wanted to thanks to your time for this glorious read!! I positively enjoying each little little bit of it and I’ve you bookmarked to check out new stuff you weblog post.
Seo Cena Gorzow Wielkopolski
I have not checked in here for a while since I thought it was getting boring, but the last several posts are great quality so I guess I’ll add you back to my everyday bloglist. You deserve it my friend 🙂
Thanks for expressing your ideas. One thing is that scholars have an alternative between federal government student loan and also a private student loan where it truly is easier to decide on student loan debt consolidation than through the federal education loan.
Another issue is that video games can be serious in nature with the most important focus on finding out rather than amusement. Although, there is an entertainment part to keep your sons or daughters engaged, each game will likely be designed to work with a specific set of skills or area, such as mathematics or technology. Thanks for your post.
Seo Google Gorzow
I think this internet site has some rattling good info for everyone. “In this world second thoughts, it seems, are best.” by Euripides.
Its fantastic as your other posts : D, thanks for putting up. “The rewards for those who persevere far exceed the pain that must precede the victory.” by Ted W. Engstrom.
Lovely blog! I am loving it!! Will be back later to read some more. I am bookmarking your feeds also.
I in addition to my pals happened to be checking the great items from your web site and then instantly got an awful suspicion I had not thanked you for those techniques. All of the people became absolutely warmed to study all of them and have without a doubt been having fun with those things. We appreciate you indeed being really kind and for picking out varieties of marvelous issues millions of individuals are really desirous to know about. Our own honest regret for not expressing gratitude to you sooner.
pembesar penis alami
I’m still learning from you, while I’m trying to reach my goals. I absolutely love reading all that is written on your website.Keep the information coming. I liked it!
I simply wanted to thank you very much once again. I am not sure the things that I might have created in the absence of the advice documented by you over such question. It was before the troublesome issue for me, but coming across this professional strategy you resolved it took me to cry over fulfillment. I’m just grateful for the help and then expect you are aware of an amazing job you’re getting into training many others by way of your webblog. Probably you’ve never met any of us.
pembesar penis alami
Hello There. I discovered your weblog using msn. That is an extremely well written article. I’ll make sure to bookmark it and come back to learn extra of your helpful information. Thank you for the post. I will certainly comeback.
Here are some of the sites we advocate for our visitors
Comments are closed.