Motion to Strike a Document or Claim

Courts of Justice Act, R.S.O. 1990, c. C.43

• Rule 12.02 - O. Reg. 258/98: Rule of the Small Claims Court

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.

Abdossamadi v TD Insurance Direct Agency Inc., 2016 ONSC 1363 (CanLII)

[17] Stark and the TD Defendants brought motions to strike the Appellant’s claim pursuant to Rule 12.02(a) and (c) of the Rules of the Small Claims Court on the grounds that it disclosed no reasonable cause of action and was inflammatory, a waste of time, a nuisance and/or an abuse of the court’s process.

[18] In reasons released on April 28, 2015, the motion judge granted the Defendants’ motions and dismissed the Appellant’s claims as against all Defendants. She found that the Appellant’s claims had no prospect of success and were therefore a waste of time. As a result, the claims were dismissed in their entirety against all parties.

[19] Did the motion judge err in striking the Appellant’s claim pursuant to Rule 12 without a trial?

[21] A motion under Rule 12.02 falls between a Rule 20 and a Rule 21 motion when compared to the Rules of Civil Procedure (see: Van de Vrande v. Butkowsky, 2010 ONCA 230 (CanLII)). Rule 12.02 functions as a method by which claims lacking in merit may be assessed by a motion judge and determined without the expense of a full trial. It is a motion that is brought in the spirit of the summary nature of Small Claims Court proceedings.

[25] The motion judge found that the Appellant would not be able to demonstrate necessary reasonable reliance at trial for several reasons. The sale agreement and advertisements contained lengthy, comprehensive and clear disclaimers as to any representations as to quality or condition or roadworthiness, state of repair or possible intended use of the vehicle. It could not have been any clearer that the Appellant knew he was buying the vehicle on the express understanding that he was not entitled to rely on Stark Auto Sales to tell him what the car was worth. In addition, the Appellant brought his own mechanic to the auction to help him inspect the car and to decide whether to buy it. The Appellant was relying on his mechanic to advise him as to the state of the vehicle. Both men had access to the vehicle to inspect it prior to bidding on the car

[26] Further, the motion judge found that the estimated cost to repair the vehicle (said to have been discovered by the Appellant only in December 2013) was that same repair cost estimate set out in the March 27, 2013 Report of which the Appellant had acknowledged receipt and said he understood when he finalized the sale on April 2, 2013.

[27] In dismissing the Appellant’s claim, the motion judge thereby relied primarily on uncontested facts. On that evidence, she found that, even if reliance by the Appellant on any alleged misrepresentation could be proven, such reliance would not have been reasonable when measured on an objective standard as the law requires.

[28] Because there was no prospect of the Appellant’s being able to provide reasonable reliance, the motion judge found that his claim had no reasonable possibility of success and was therefore a waste of time within the meaning of Rule 12. Accordingly, she found that she did not have to consider the question of the vehicle’s brand was or whether that brand was improper or incorrect.

[35] On this basis, the motion judge found that proceeding to trial in Small Claims Court was a “waste of time” within the meaning of Rule 12.02 and dismissed the action.

[36] Having regard to the full circumstances, I can discern no palpable and overriding error in the motion judge’s assessment of the evidence and the applicable legal considerations. I see no error that affected the result or that would justify appellate intervention.

Elguindy v St. Joseph’s Health Care London, 2017 ONSC 4247 (CanLII)

[65] I recognize that the Deputy Judge’s endorsement is unclear. On several occasions he refers to rule 12.02. He does not expressly indicate whether he is relying on rule 12.02(1), rule 12.02(2) or both of them. On the final page of his endorsement[8], the Deputy Judge concluded “a trial would be a waste of time and effort.” The words “waste of time” appear in rule 12.02(1)(c). A finding to that effect allows the court to “strike out…all or part of any document”.

[66] However, the Deputy Judge did something more. He disposed of the motion with these words: “Accordingly, the claim is dismissed.” What he clearly intended to do was to strike the claim and dismiss the action. Rule 12.02(1) gave him the authority to do the former. The jurisdiction to do the latter came from rule 12.02(2).

[67] In my view, the Deputy Registrar made a finding under rule 12.02(1) \(c) and then disposed of the motion in a manner permitted by rule 12.02(2) 1.

[68] The following questions arise.

[69] Why was the change to rule 13.05(2)(a) made in 2014? What is its effect? Is Hussain to be confined to motions for summary judgment or does it apply to any motion which could finally determine the action? If the latter, is Hussain nonetheless confined to proceedings governed by the SCJ Rules? Are the words in rule 50.09 of the SCJ Rules prohibiting communication of any statement made at a pre-trial conference to “the judge…presiding at the hearing of…a motion” critical to the decision? Is the absence of those words from rule 13.03(4) of the Small Claims Court Rules significant? Is the characterization of motions under rule 12.02 of the Small Claims Court Rules as set forth in Van de Vrande v. Butkowsky, supra significant? Does the requirement that the Small Claims Court Rules “be liberally construed to secure the most expeditious and least expensive determination of every proceeding on its merits” have any effect?[9]

[70] Those questions are ones to be asked and answered following the hearing of the appeal on September 8, 2017, not on the return of a motion of this kind. On this one issue, the appeal is not manifestly devoid of merit.

[71] Counsel for St. Joseph’s Health Care London and Lisa Barnes submitted that resolution of this ground of appeal would not change the result of the motion the Deputy Judge heard. Expert reports on the standard of care were essential. Mr. Elguindy had been ordered to produce them. He failed to do so. The additional amendments made to the Claim Mr. Elguindy filed in the Small Claims Court did not relieve him of the obligation the common law recognizes and the court imposed.

[72] The same argument was made in Hussain. In rejecting the submission, Simmons J.A. said at para. 25:

Finally, I would reject the Bank’s claim that the strength of its case should govern the outcome of this appeal. The purpose of rules 59.09 [sic] and 59.10 [sic] is to protect the efficacy of pre-trial conferences in facilitating settlements. In all the circumstances, upholding the result in this case would sanction ignoring the Rules and undermine public confidence in the administration of justice.

[73] The same applies here. I decline to quash the appeal.

Van de Vrande v. Butkowsky, 2010 ONCA 230 (CanLII)

[9] In arguing for the availability of a motion for summary judgment, the appellant emphasizes s. 25 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that Small Claims Court should proceed in a summary manner. He therefore argues that, pursuant to rule 1.03(2) of the Small Claims Court Rules and s. 25 of the Courts of Justice Act, rule 12.02 should be read broadly, as allowing a motion for summary judgment. With respect to the applicable test, he argues that reference should be had to rule 76.07 (since repealed on January 1, 2010) of the Rules of Civil Procedure, which governs motions for summary judgment under the simplified procedure, and allows a motion judge to make findings of fact.

[10] The respondent argues that such motions are not available under the Small Claims Court Rules. He submits that the silence of the Small Claims Court Rules is a deliberate omission, not a gap to be filled. In the respondent's view, a motion for summary judgment is as foreign to the proceedings of the Small Claims Court as examinations for discovery and not to be read into the Small Claims Court Rules. In the respondent's view, both the motion judge and Divisional Court erred in applying tests for motions for summary judgment to a rule 12.02 motion.

[18] Further, rule 12.02 applies in a somewhat different context than the Rules of Civil Procedure. Section 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. [page647]

(2) Did the motion judge err in holding that the appellant was immune from suit and that the action was filed outside the applicable limitation period?

[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.

[24] The motion judge went on to find that, even if she had erred in her conclusion on the immunity issue, the claim had no chance of success because it was instituted after the applicable limitation period had expired. In reaching this conclusion, she addressed and rejected the respondent's submission that the transitional rules of the Limitations Act, 2002 applied to the respondent's claim.

[25] Based on the materials properly before her, I see no basis to interfere with her findings and conclusions on both of these issues.

[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). Conclusion

[27] In conclusion, I would allow the appeal and reinstate the motion judge's dismissal of the claim. If the parties are unable to agree on costs, the appellant is to provide brief written submissions [page648] within 20 days hereof, and the respondent is to provide brief written submissions within ten days thereafter.