Baradaran v. Alexanian 2016 ONCA 533
The Court of Appeal confirmed that it is inappropriate to treat a motion to strike portions of a Statement of Claim as a summary judgment motion by examining evidence on the merits of the action.
Released July 5, 2016 | Full Decision [CanLII]
In this solicitor’s negligence action, the defendant law firm brought a motion to strike certain paragraphs of the Statement of Claim on the basis that they were frivolous and vexatious or an abuse of process. The defendant law firm supported its motion with a lengthy affidavit sworn by the lawyer, Shahan Alexanian, who had previously had carriage of the actions in question for the plaintiff. The motions Judge granted the motion and struck the impugned paragraphs on the following basis, without leave to amend. The motions judge also granted the defendant substantial indemnity costs for the motion. The paragraphs in question and the basis for the motion judge’s decision to strike them are set out below:
- Paragraphs 17 and 18 of the Statement of Claim contained allegations of negligence with respect to an action against a dentist and against a former lawyer. The motions judge dismissed these allegations as statute-barred on the basis of evidence that plaintiff had not consulted the Mr. Alexanian until after the limitation periods had expired.
- Paragraph 19 of the Statement of Claim alleged negligence in an action for a return of the deposit on a timeshare property. The alleged negligence was Mr. Alexanian’s failure to attend a trial. The motions judge dismissed this paragraph on the basis that the plaintiff had delivered a Notice of Intention to Act in Person.
- Paragraphs 20 and 21 were allegations of negligence based on (1) a personal injury action being dismissed for delay and (2) negligent representation in an action against a travel agency, respectively. The motions judge dismissed these actions on the basis that Mr. Alexanian had issued claims, pursued productions, and had scheduled discoveries when the plaintiff decided to sue him.
The Court noted that courts will only strike out a claim on the basis that the claim is frivolous, vexatious, or an abuse of process in the clearest of cases and where it is plain and obvious that the case cannot succeed. It is not enough for a claim to be merely unlikely to succeed. Importantly, the process is not one of weighing and assessing evidence against the allegations as would be the case in a trial or summary judgment motion.
While affidavit evidence is admissible on a motion, the evidence is only admissible for the purpose of determining whether a pleading on its face has no chance of success, and not to establish the merits or lack thereof.
The Court held that the motions judge had erred in striking the paragraphs of the Statement of Claim on the basis of the Mr. Alexanian’s affidavit evidence. It also rejected the defendant law firm’s argument that the motions judge was entitled to convert the motion to a summary judgment motion at which the plaintiff was afforded the opportunity to tender evidence and respond to questions. In the result, the Court set aside the decision of the motions judge, including the award of substantial indemnity costs, and granted the plaintiff/appellant costs of the appeal.
Read the full decision on CanLII