It has become accepted wisdom that Ontario’s civil justice system is in crisis. While some areas of civil procedure have recently received considerable attention from those looking at reform, most notably summary judgment, the discussions have largely ignored other aspects. One of them is the law on pretrial motions to resolve questions of law.
Ontario’s Rule 21.01(1) addresses two alternative ways for resolving questions of law on a pretrial basis. First, Rule 21.01(1)(b) permits a party to move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. Second, Rule 21.01(1)(a) permits a party to move before a judge for the determination of a question of law, raised by a pleading, when it may dispose of the action, substantially shorten the trial or result in significant cost savings.
As is well known, the test for whether the court should strike a pleading pursuant to Rule 21.01(1)(b) is whether it is plain and obvious that there is no reasonable cause of action or defence. Under this approach, if the motions judge is facing a novel pleading, the fact that the law has not yet recognized the particular cause of action or defence pleaded is not in itself sufficient to justify striking it from the plaintiff’s statement of claim or the defendant’s statement of defence. Ontario courts have held that matters of law that are not fully settled should not be disposed of on a motion to strike. The motions judge must accept the facts alleged in the statement of claim or defence as true unless they are patently ridiculous or incapable of proof, and the pleading should be read generously with allowances made for inadequacies due to drafting deficiencies.
On a straightforward reading of Rule 21.01(1)(a), one might think there was no particular test for a motion under it. If the triggering language of the rule is satisfied, then it proceeds to resolve the question of law. However, Ontario courts have read into the rule an additional threshold. In MacDonald v. Ontario Hydro, the motions judge held that the court should not decide a question of law unless the answer to that question was plain and obvious.
The Divisional Court agreed. Subsequently, the use of the plain and obvious test in considering a motion under Rule 21.01(1)(a) has repeatedly been affirmed by Ontario courts.
Over the years, the courts have offered three distinct reasons to support the plain and obvious test. The first is rooted in the legal origins of these motions. The second centres on the apparent need for a full evidentiary record. The third is based on notions of access to justice. All treat the conventional trial as the paradigmatic means of resolving civil disputes.
First, Rule 21 is the codification of the historic inherent power of the superior court to deal with proceedings that constituted an abuse of process. Claims that failed to disclose any cause of action were considered abusive, along with those that were frivolous or vexatious. The threshold for concluding that a claim was abusive, frivolous, or vexatious was a very high one, and so consistency led the court to adopt a similarly high threshold for those that did not disclose a cause of action.
Second, the courts have repeatedly stressed the need for a full evidentiary record as the proper context for the resolution of novel, complex, or contested legal issues. This provides the court with what it considers a more complete factual picture. This approach means that in many cases the court refuses to decide motions on questions of law, preferring to defer the issues until trial.
Third, as noted above, the courts have also indicated that even when there is no concern about the sufficiency of the record, unsettled legal questions should not be resolved under Rule 21. Like the other reasons for the high threshold, this is an expression of the philosophy that only in the clearest of cases will a party be deprived of having the dispute resolved at trial. In Dyson v. Attorney General, the English Court of Appeal warned against the plaintiff being “driven from the judgment seat.”
Each of the reasons for the plain and obvious test can and should be challenged.
First, while the historical abuse of process roots of motions to determine questions of law cannot be denied, a strong argument can be made that the role of these motions has evolved. Today, Rule 21.01(1) is better understood as a separate, independent part of the Rules of Civil Procedure rather than as a subset of the doctrine of abuse of process. This is most notable in Rule 21.01(1)(a) since the resolution of discrete legal issues is not linked to ideas of abuse of process. Rule 21.01(1) plays a much more important role than simply guarding against radical defects in pleadings.
Second, the need for a full evidentiary record is also increasingly questionable. On a Rule 21 motion, the facts as pleaded are to be taken as true, so it is hard to see why courts have stressed the need to proceed to trial. This point has been noted recently by the Supreme Court of Canada in R. v. Imperial Tobacco Canada Ltd. If a defendant is moving to challenge the sufficiency in law of a plaintiff’s pleading, it is hard to see how the plaintiff should be entitled to rely on the low plain and obvious standard due to the lack of a factual record. The plaintiff has had the opportunity to create the most favourable factual context in which the legal issues are to be resolved through the drafting of the pleadings.
Third, the biggest overall change of late is a move away from thinking that the conventional trial is the dominant means of resolving civil disputes. That idea has been forcefully challenged in the summary judgment context by the Supreme Court of Canada’s recent decision in Hryniak v. Mauldin. In the court’s view, the traditional balance between extensive pretrial processes and the conventional trial no longer reflects the modern reality and needs to be readjusted. It emphasized that a new and proper balance must recognize that a process can be fair and just without the expense and delay of a trial and that alternative models of adjudication are equally legitimate.
While this was in the context of a shift to a more liberal use of summary judgment motions, the rationale is equally apposite to more liberal use of motions to resolve questions of law. It is lamentable that in Canada (Attorney General) v. Confédération des syndicats nationaux, our highest court repeated the orthodox approach to motions to strike based on an alleged concern about allowing access to justice without any discussion or analysis of whether that traditional approach remains desirable or even supportable on a modern understanding of what access to justice truly requires.
The traditional rationale for the plain and obvious test for Rule 21 motions is no longer convincing. It cannot remain acceptable for motions judges to defer to the need for a full evidential record, the difficulties posed by complex or novel legal questions, and the importance of a party’s day in court in the form of an ultimate trial on the merits. On closer examination, these reasons are insufficient to support the orthodox approach.
Ontario’s system of civil procedure requires what the Supreme Court of Canada calls a culture shift, moving away from relying on trials as the dominant means of resolving disputes. Earlier judicial intervention through alternative processes will promote greater efficiency and access to justice, and this can be achieved without sacrificing the fairness of the process. Judges in a variety of contexts have shown that they are more than capable of resolving novel or complex questions of law on motions. This should become, through both jurisprudential and regulatory change, the new approach to Rule 21 motions. The plain and obvious test is a legacy of history and a product of a different judicial age. The various reasons articulated in its support no longer withstand scrutiny and as a result it needs to be replaced.
Stephen Pitel is a professor at the Western University Faculty of Law. Matthew Lerner is an associate at Lenczner Slaght Royce Smith Griffin LLP.