In what circumstances will a summary application be set aside?

Saskatchewan, Canada


The following excerpt is from F. v. Koyl Securities Limited, 1939 CanLII 193 (SK QB):

In Glass v. Grant (1888) 12 P.R. 480, it was held, according to the headnote: “As a general rule pleadings should not be set aside on summary applications unless so plainly frivolous or indefensible as to invite excision. Where a matter is doubtful or difficult it is better to leave the objecting party to demur; and even if the pleading appears to be demur able, that is not a sufficient reason for expunging it from the record.”

In Rickerd and Powell v. Weber, supra, Ewing, J. is reported on p. 117, [1934] 1 W.W.R., in part as follows: “Several grounds for striking out the counterclaim are alleged. The first is that the counterclaim is scandalous and tends to prejudice, embarrass or delay a fair trial of the action. It is at once apparent that if the allegations contained in the counterclaim are true they are not scandalous, at least in the sense in which that term is used as a ground for striking out a pleading.”

In Fenhoulet v. Passavant, supra, the Lord Chancellor in his judgment is reported as follows: “The single question is, whether these charges, referred for scandal and impertinence, may be relevant to the merits; and the majus or minus of the relevancy is not material, which turns on this, whether plaintiff has any ground for this suit or not; for if relevant, it cannot be said they are scandalous or impertinent. Otherwise it would be laying down a rule, that all charges of fraud are scandalous; which would be dangerous, and cannot be the rule; for nothing pertinent to the cause can be said to be scandalous.”

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