Pre-trial Disposition of Claims and Defences
| Author | Roger McConchie; David Potts |
| Profession | Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario |
| Pages | 645-672 |
C
H A P T E R T
W
E N T
Y
-
F
I V E
I
Pre-trial
Disposition
of
Claims
and
Defences
The
court rules
in
each province
and
territory authorize
a
judge
to
dispose
of
claims
and
defences
before
trial
on a
variety
of
grounds.
This chapter focuses
on the
defamation
jurisprudence relating
to
pre-
trial
motions:
i)
to
strike pleadings,
ii)
for
summary judgment,
and
iii)
for a
summary trial verdict.
The
rules
of
court governing these particular motions
differ
from
jurisdic-
tion
to
jurisdiction.
For
example,
not all
provinces have
a
"summary trial"
rule.
The
jurisprudence
reflects
the
differences
in the
rules
as
well
as
nuances
in the
common
law
relating
to
procedure. Accordingly, litigants
must
be
cautious
when
considering case
law
from
other jurisdictions
and
give
very close consideration
to the
specific
provisions
of the
rules
in
force
where
the
defamation litigation
is
brought.
The
rules relating
to
summary judgment
and
summary trial
are
particu-
larly
complex.
It is
beyond
the
scope
of
this
chapter
to
examine each aspect
of
those rules
in
detail.
A.
STRIKING PLEADINGS
Defamation
claims
and
defences
may be
impeached pursuant
to
court rules
in
each jurisdiction
which
authorize
a
judge
to
strike
out the
whole
or
part
of
a
pleading
on the
ground that:
(a)
it
discloses
no
reasonable claim
or
defence,
(b) it is
scandalous,
frivolous,
or
vexatious,
(c)
it may
prejudice, embarrass
or
delay
the
fair
trial
of the
action,
or
645
646
CANADIAN
ACTIONS
(d) it is
otherwise
an
abuse
of
process
of the
court.
Alberta, Judicature Act, R.S.A. 1980,
c.
J-l,
Alberta Rules
of
Court,
Alta.
Reg.
390/68,
r.
129(1).
British
Columbia,
Court Rules Act,
R.S.B.C.
1996,
c. 80;
Supreme Court
Rules,
B.C. Reg.
221/90,
r.
19(24).
Manitoba,
Court
of
Queen's Bench Act, S.M.
1988-89,
c. 4,
Court
of
Queen's
Bench Rules, Man. Reg.
553/88,
r.
25.11.
New
Brunswick,
Judicature
Act, R.S.N.B. 1973,
c.
J-2,
Rules
of
Court, N.B.
Reg.
82/73,
r.
27.09.
Newfoundland,
Judicature Act, R.S.N. 1990,
c.
J-4, Rules
of the
Supreme
Court, 1986, S.N. 1986,
c. 42,
Sched.
D, r.
14.24(1).
Northwest
Territories,
Judicature Act,
R.S.N.WT.
1988,
c.
J-l,
(Alberta
Rules
of
Court
apply).
Nova
Scotia, Judicature Act,
R.S.N.S.
1989,
c.
240,
Civil
Procedure Rules,
RR.
r.
14.25.
Ontario,
c.
C-43; Rules
of
Civil Procedure,
R.R.O. 1990, Reg. 194,
r. 21.
Prince
Edward
Island,
Supreme Court Act,
R.S.EE.I.
1988,
c.
S-10,
Rules
of
Civil
Procedure,
r.
25.11.
Saskatchewan,
Queen's Bench Act, R.S.S. 1978,
c.
Q-l,
Queen's Bench Rules,
r.
173.
Yukon,
Judicature
Act,
R.S.Y. 1986,
c. 96
(British
Columbia
Supreme Court
Rules
apply).
Federal
Court Rules
(1998),
r.
419.
See
Chapter
22,
"Pleadings,"
for a
discussion
of the
substantive
law
con-
cerning
deficiencies
in
defamation
pleadings.
Many
of the
decisions
cited
in
that
chapter
involve
applications
to
strike
claims
or
defences.
1)
Discloses
No
Reasonable
Claim
or
Defence
The
test
to be
applied
in
determining
whether
to
strike
out a
pleading
is
whether
it is
"plain
and
obvious"
that
the
statement
of
claim
or
statement
of
defence,
as the
case
may be,
discloses
no
reasonable
claim
or
defence.
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