What is the proper test for certification of a statement of claim?

Newfoundland and Labrador, Canada


The following excerpt is from Dow Chemical Company v. Ring, Sr., 2010 NLCA 20 (CanLII):

In Risorto v. State Farm, Cullity J. at para 23 summarized the proper approach to the first criterion for certification: It is well-established that [the question of whether a statement of claim discloses a cause of action] must be decided on the basis of the facts alleged in the pleading on the assumption that they will be proven at trial. Accordingly, evidence is not admissible to rebut such allegations. The test to be applied is whether it is plain and obvious that the plaintiffs could not succeed in establishing the alleged causes of action that are said to arise from the facts pleaded. For this purpose, the pleading is to be read generously and allowance made for drafting inadequacies. It has been held that the novelty of a cause of action is not, in itself, a reason for rejecting it and that a decision to do so should not be made if the court would be required to decide matters of law that are not fully settled in the jurisprudence and that should be viewed in the light of a full evidential record.

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