What is the test in Canada governing the application of Rule 19(24) of the "plain and obvious rule"?

British Columbia, Canada


The following excerpt is from Home v. Mide-Wilson, 2009 BCSC 411 (CanLII):

Hunt v. T & N plc ... - The test in Canada governing the application of this Rule is whether it is plain and obvious that the statement of claim discloses no reasonable cause of action. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) should the relevant portions of the statement of claim be struck. Guidelines to the "plain and obvious" rule include: (a) whether there is a question fit to be tried regardless of complexity or novelty; (b) the outcome of the claim at trial is beyond a reasonable doubt; (c) serious questions of law or questions of general importance are raised or if facts should be known before rights are decided; (d) pleadings might be amended; and (e) there is an element of abuse of process. [emphasis added by Lambert J.A.] Those rules are guidelines to the "plain and obvious rule" to which Madam Justice Wilson referred. Because of its particular significance in this case, I emphasize what is listed as (d), that "pleadings might be amended". That point has been made in other decisions of this court.

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