What are the relevant factors for a motion to strike out one of the pleadings?

Ontario, Canada


The following excerpt is from Schembri v 1581780 Ontario Inc. et al, 2016 ONSC 8125 (CanLII):

The plaintiffs rely in part on the case of Tizard Estate v. Quinte Detention Centre [2003] O.J. No. 3010, where the court at paragraphs 3 and 21 described the relevant factors that should be looked at when a motion is brought to court, to strike out one of the party’s pleadings. Those paragraphs state: 3. The central question on the motion is whether to impose the drastic remedy of dismissing the claim or to grant some lesser remedy. At what point should delay and disregard for the court orders by the plaintiffs (or their counsel) deprive them of their right to proceed with the claim? The answer to that question requires careful review of the substance of the default and its impact of the ability of the court to do justice. Dismissal of an action should not result from trivial technical breaches but should be ordered when continuation of the action is no longer viable and appropriate. 21. A secondary but certainly not trivial consideration is the integrity of the Justice system. Open disregard for court orders and failure to enforce them with appropriate sanctions will bring the system of case management into disrepute and undermine confidence in the civil justice system. That in a way is to put systemic needs above justice to the individual litigant, so again it should be the last resort to be used when a party has by its failure or refusal to be bound by the rules, abandoned its right of access to the courts.

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