What is the test to strike a statement of claim under Rule 9-5?

British Columbia, Canada


The following excerpt is from Shi v Duan, 2017 BCSC 2002 (CanLII):

In Hunt v. T & N plc, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 at para. 33, Wilson J. for the court detailed the test to strike pleadings under Rule 9-5 as follows: …[A]ssuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect … should the relevant portions of a plaintiff's statement of claim be struck out under R. 19(24)(a) [now Rule 9-5(1)(a)].

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