Can a plaintiff's pleading be fatal to its criminal interest claim in a certification application?
British Columbia, Canada
The following excerpt is from MacFarlane v. United Parcel Service Canada Ltd., 2008 BCSC 654 (CanLII):
While the plaintiff’s present pleading might well be fatal to its criminal interest claim in a certification application (Scarlett v. Fortis, 2007 BCSC 43), I am satisfied that it would not be just to decide this application on the pleading point (Rule 18A (11)(a)(ii)). The point was not raised in the defendant’s pleading or in its initial submission on this application. Given the defendant’s position that there is in fact a contract between the parties - a question which will have to be ultimately decided - it would be perverse to accede to the submission that I should dismiss at this time this portion of the plaintiff’s claim on the grounds that they have not pled or established a contract.
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