NEVSUN, ATLANTIC LOTTERY, AND THE IMPLICATIONS OR THE 2020 SUPREME COURT OF CANADA MOTION TO STRIKE DECISIONS ON ACCESS TO JUSTICE AND THE RULE OF LAW.

• Author: Kennedy, Gerard J.

Novelty is not a reason to strike a claim.

"Novelty is a reason not to strike a claim."

Syntax matters. The subtle but important difference between these two sentences affects how procedural law can be used to advance access to justice and the rule of law. Two recent Supreme Court of Canada decisions--where the important holdings on the substantive law will also resonate for years--demonstrate this. Nevsun Resources Ltd v Araya (1) and Atlantic Lottery Corp Inc v Babstock (2) may seem, at first blush, to have little in common apart from being 2020 Supreme Court of Canada decisions. After all, one concerns the ability of Canadian courts to provide redress for gross violations of international human rights law. The other addresses important issues regarding the law of restitution that have long been in doubt. However, they are united by the ability of common law courts to determine novel questions of law on preliminary motions to strike--that is, resolving a case on the basis that the pleadings are deficient, particularly because the facts alleged, even if true, would not entitle the party to the relief that it seeks as a matter of law. On this front, the decisions appear to be part of a trend of courts using summary procedural mechanisms to facilitate access to justice and develop the common law. It is possible that the decisions' implications on procedural law will have wider-ranging implications than their more constrained, if very important, impacts on substantive law.

This article analyzes whether Nevsun and Atlantic Lottery have--either explicitly or by necessary implication--changed the law regarding using motions to strike to determine questions of law in Canada. Part I looks at the history of motions to strike prior to 2020 and places this against the backdrop of the principles of the rule of law and access to justice, including the spirit of the seminal Supreme Court civil procedure decision, Hryniak v Mauldin. (3) Part II analyzes the decisions in Nevsun and Atlantic Lottery in depth, seeking to separate the analyses regarding the appropriateness of using the motions to strike from the also notable aspects of the decisions on substantive law. Finally, Part III looks at the immediate aftermath of the decisions: doctrinally based on their procedural holdings; empirically in how they have been interpreted since being decided; and normatively in light of principles and goals of civil procedure. Throughout all of this analysis, it is posited that Nevsun and especially Atlantic Lottery have subtly expanded the invitation to courts to decide novel questions of law on motions to strike. The test to resolve such a question could be rephrased, with a judge asking "would the evidence regarding what the plaintiff and/or defendant did, as alleged in the pleadings, assist in my resolving the legal issue?". This accords with broader trends to use procedural tools to promptly resolve actions on their merits while developing the common law. The result should not only be more access to justice in terms of prompt resolution of cases and better use of judicial resources. Rather, it should also preserve the rule of law through greater resolution of contentious legal issues.

I) BACKGROUND

A. A Terminological Note

Motions to strike pleadings--or motions to determine questions of law--are powerful but discrete tools in civil procedure. Codifications, such as in Rule 21 of Ontario's Rules of Civil Procedure (4) and Manitoba's Court of Queen's Bench Rules, (5) or Rule 9-5 of British Columbia's Supreme Court Rules, (6) reflect the historic power of common law courts to address abuses of process, with an action that discloses no cause of action being an abuse of process. (7) As the next subsection will illustrate, a "motion to strike" can have many purposes, only one of which is to determine a question of law. A plaintiff can also bring a motion to have a question of law determined in its favour. (8) When it does so, the plaintiff is obviously not seeking to "strike" its own claim. As such, the terms "motion to strike" and "motion to determine a legal question" have significant--but not perfect--overlap. Nonetheless, motions to strike will be the term mostly used for the rest of this article, given that: it is very common in practice; Nevsun and Atlantic Lottery both concerned motions to strike and it was the terminology used in the decisions; and it is a simpler term than "motion to determine a legal question". Most importantly, as analyzed in this article, both a "motion to strike" and "motion to determine a question of law" concern the ability of courts to resolve legal questions on pleadings. It is this ability to resolve legal questions on pleadings that this article will primarily analyze, irrespective of the terminological name attached to a motion.

B. Motions to Strike: The Approach Prior to Hryniak

As noted, determining a question of law is not the only reason an action will be "struck" at an early stage. Uncontroversial reasons to strike pleadings or portions thereof include:

* a lack of particularity, preventing the other party from being able to plead an informed response, such as failing to explain why punitive damages are warranted; (9)

* being abusive, scandalous, or irrelevant, such as attacking a party's character needlessly; (10)

* claiming absurdities; (11) and/or

* attempting to re-litigate a matter already determined. (12)

None of these are controversial.

What has been more controversial--and what the rest of this article will primarily address--is when a pleading is alleged not to disclose a cause of action. In other words, a claim can be "struck" on the grounds that, even if everything a plaintiff says is true, the plaintiff would still lose for failing to meet the required elements of a recognized/established cause of action. For example, in 1317424 Ontario Inc v Chrysler Canada Inc, the Ontario Court of Appeal struck a nuisance claim where the plaintiff alleged that its ability to enjoy its property was impaired by a previous owner's failure to remediate the land. (13) The Court noted that it is an essential element of nuisance that whatever causes interference with the land emanate from outside the plaintiffs land. As such, even if everything the party said was true, the nuisance claim would still fail.

At the same time, caution is necessary regarding the use of motions to strike in areas where the law is contested. As McLachlin CJ noted in R v Imperial Tobacco, "[t]he law is not static and unchanging". (14) As such, in Hunt v Carey, the Supreme Court of Canada held that a pleading should only be struck if it is "plain and obvious" that no cause of action is disclosed. (15) This firmly errs on the side of permitting tenuous or novel claims to advance to trial or a summary judgment motion if they are potentially meritorious. Since no evidence is admissible on a motion to strike, a judge must assume that everything the plaintiff says is true (unless it is absurd or incapable of proof) and then, on the plaintiffs version of the facts, still be able to come to the conclusion that the plaintiff will inevitably lose because its pleading discloses no viable cause of action.

But as other commentary (16) has noted, a review of the case law reveals two different approaches to motions to strike being applied under the label of the same test. This tension has been explored in depth by Stephen Pitel and Matthew Lerner. (17) Many decisions have given a strict interpretation to the "plain and obvious" test. Indeed, in Hunt v Carey itself, it was held that an action should not be struck for failing to disclose a cause of action unless it amounts to an abuse of process. This accords with the rule's history. (18) Another way of describing this standard is that a claim should be struck only if it is "certain to fail". (19) In this vein, many celebrated new causes of action originally survived motions to strike, such as in Jane Doe v Board of Commissioners of Police for the Municipality of Metropolitan Toronto, (20) holding that the police breached a duty of care by failing to warn women in a neighbourhood about a serial rapist.

However, in 2011, McLachlin CJ wrote in R v Imperial Tobacco that "another way of putting the [plain and obvious] test is that the claim has no reasonable prospect of success." (21) As we will be coming to in discussing Atlantic Lottery, this formulation, followed elsewhere, (22) continues to be commonplace.

Are the "certain to fail" or "plain and obvious" standards truly synonymous with a "reasonable prospect of success" standard? This seems doubtful. Holding that a claim may be struck if there is no reasonable prospect of success permits a motions judge to make determinations about the outcome of an action based on its merits, while Hunt explicitly cautioned against this. (23) This shift may reflect a different understanding of the purpose of motions to strike. In Imperial Tobacco, McLachlin CJ wrote that motions to strike are for "weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial." (24) This explicit invocation of the concern of the justice system more broadly rather than just in a particular case is reflective of broader trends and admonitions regarding the use of procedural law to facilitate access to justice--a topic that will now be addressed.

C. Motions to Strike, Access to Justice, and the Rule of Law

1. Access to Justice

   "Access to justice" is a ubiquitous term often revealed to have multiple meanings. Traditionally, the emphasis has been on the "access" part of this phrase, assuming that, if access to the justice system is facilitated, justice will be served. (25) This is frequently conceived of as making procedure more accessible and affordable. Some conceptions of access to justice are much broader, however, bringing in questions of substantive justice. (26) Other work in this field has concentrated on how to...