What is the test for striking out a defence pleading for ultra vires?
British Columbia, Canada
The following excerpt is from Doyle Const. Co. v. Carling O-Keefe Breweries of Can. Ltd., 1988 CanLII 2843 (BC CA):
Tomkinson v. South-Eastern Ry. Co. (1887), 57 L.T. 358, was a case where the defendant put forward 13 paragraphs specifying reasons why an enactment was ultra vires and it was contended many of the clauses were irrelevant or unnecessary. Kay J. decided that it was not the meaning of the rule that any matter alleged should be struck out merely because it might be a bad reason, but it was to prevent either party to an action from prejudicing, embarrassing or delaying the fair trial of the action by stating in his pleading utterly irrelevant matters.
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