What is the test for a motion to strike?

Ontario, Canada


The following excerpt is from Doucette v. Marin, 2008 CanLII 66625 (ON SC):

The plaintiff, in responding to this motion to strike, relies on the decision of Logue v. Jerome [1988] 1 R.P.R. (2d) 174 (Dist. Ct.) where the owner of a property sued the previous owner on an unconditional warranty and the previous owner issued a third party notice to their previous owner. The court held that the defendant relied on the warranty supplied to her when she purchased the property from the third party and the third party was in breach of that warranty. As a result, the court held the defendant was entitled to damages for the breach from the third party. The court did not consider the question of whether there was any consideration for the signing of the warranty.

In the case before me, the statutory declaration which warrants the absolute truth of the statement and changes the warranty in the agreement of purchase and sale which states “to the best of her knowledge and belief” was given without fresh consideration and was executed after the agreement of purchase and sale. Considering the jurisprudence under Rule 21.01, assuming that the facts as pleaded are true, and applying the decision of Gilbert v. Steel, supra, I am of the view that it is “plain and obvious” that the facts asserted disclose no reasonable cause of action against the third party.

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