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

LIBEL

AND

SLANDER

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,

Courts

of

Justice Act, R.S.O. 1990,

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.