What is the test for striking a Defendant's pleadings?

British Columbia, Canada

The following excerpt is from Corban Construction Co. Ltd. v. Nankivell, 1995 CanLII 1837 (BC SC):

20 I was referred to the decision Degroot v. Kotowick [1989] B.C.D. Civ. 2203-02, January 17, 1989, S.C.B.C. The plaintiff sought to strike portions of the defendant's pleadings. The defendant claimed against the plaintiff in her counterclaim, against the plaintiff's farm for improvements the defendant said she provided while living with one of the plaintiffs, and assisting and managing the farm enterprise. The defendant said that one of the plaintiffs was unjustly enriched by the work performed by the defendant on the plaintiff's property to the plaintiff's knowledge. Facts in support of the claim for unjust enrichment are that the defendant contributed time and labour to the farm operation owned by one of the defendants, that the time and labour was contributed between September 1985 and October 1987 and that it served to preserve, maintain, and improve the property. The counterclaim also alleges that the plaintiff owner " . . . knew or ought to have known that the defendant would expect some form of compensation in return for time and labour." The defendant alleges an unjust enrichment and claims an interest in the farm.

21 The court referred to Sorochan v. Sorochan (1986) 1986 CanLII 23 (SCC), 2 R.F.L. (3d) 225, S.C.C. for the proposition that a constructive trust can remedy an unjust enrichment. The remedy for an unjust enrichment can be "in rem" remedy where an interest is available in the land in question or "in personam" where the relief would result in a monetary judgment. The court allowed the lis pendens to stand on the basis that the claim for unjust enrichment could entitle the defendant to claim an interest in the property.

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