J. Striking Out of Pleadings

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 549-552

Page 549

An application to strike out pleadings is based on the provincial rules of court and the jurisdiction of the court to prevent an abuse of its process.⁸⁵Such applications should succeed only in the clearest possible cases.⁸⁶An enforcement order providing that the appellant’s pleadings will be struck out unless she pays a designated lump sum and periodic amounts on account of monthly support arrears in addition to paying ongoing interim child and spousal support payments may be varied on appeal where compliance with the totality of the financial conditions is beyond the capacity of the bankrupt obligor.⁸⁷

Page 550

A court may order the production of specified documents coupled with a direction that failure to comply will justify an application to strike out the offending party’s answer and counterpetition.⁸⁸Pleadings that are scandalous or tend to embarrass or prejudice or delay a fair trial may be struck out, but the power to strike out such pleadings should be exercised only in plain cases.⁸⁹Portions of an affidavit may be struck out pursuant to B.C. Rule 51 as being inadmissible by virtue of the common law privilege extending to "without prejudice" settlement negotiations.⁹⁰Once an order is made directing the trial of an issue, any affidavits filed become pleadings. If any of the allegations contained in the material are irrelevant or tend to embarrass or delay a fair trial, they may be struck out.⁹¹There is no authority under the Divorce Act⁹² or provincial rules of court to strike out an answer or counterpetition for non-compliance with an order for costs. The respondent should not be deprived of the right to a full defence when other remedies exist to enforce obedience to an order for costs.⁹³Alberta Rule 129(1) empowers a court to strike out any pleading in an action on the ground that it discloses no cause of action. To succeed under Rule 129(1), an applicant must demonstrate that even if all the facts alleged in the statement of claim were true, the plaintiff could not succeed in his lawsuit. The burden on the applicant is a heavy one and a court should not strike out a pleading as disclosing no cause of action unless the court is satisfied beyond doubt that no cause of action exists or that no possible basis for a cause of action has been presented.⁹⁴On a motion to strike out a statement of claim on the basis that it discloses no reasonable cause of action, a court should not dispose of matters of law that are not fully settled by the jurisprudence, nor should the plaintiff be denied further legal recourse if there is a chance that she might succeed. The length and complexity of the issues, the novelty of the cause of action, and the potential for the defendant to present a strong defence are insufficient to disallow the plaintiff from proceeding with the case.⁹⁵The weakness of the case is not a ground to strike pleadings under B.C. Rule 19(24)

(a), but pleadings should be struck where it is plain and obvious that there is no reasonable cause of action. The Supreme Court of British Columbia has no jurisdiction under the Family Relations Act to adjudicate claims for child support and spousal support filed by a common-law wife against her deceased partner’s estate and the pleadings may, therefore, be struck pursuant...