Carfra Lawton LLP | Victoria BC

Stringent test for striking pleadings and summary judgment

In Stoneman v. Denman Island Local Trust Committee 2015 BCSC 264 the defendants sought to strike the plaintiffs’ claims for disclosing no reasonable cause of action, arguing they were an abuse of process. They also argued that the actions were res judicata because they were based on issues that had been before the court on numerous occasions in other actions. The defendants also applied for summary judgment dismissing the claims. The plaintiffs’ claims related to the defendants’ refusal to provide the plaintiffs with a land development permit.

The Court confirmed that the test on an application to strike pleadings is whether it is “plain and obvious” on the facts as pleaded that the action will fail. If there is any doubt the pleadings must be allowed to stand. The Court also held that if the doctrine of res judicata applies, the action should be struck on the basis that it is an abuse of process of the court. Lastly, the Court confirmed that the test for summary judgment dismissal is whether the pleadings raise a bona fide triable issue. No issue of fact or law is to be determined on an application for summary judgment. If there is a doubt as to whether there is a triable issue, the application to dismiss the claims cannot succeed.

In this case the court ultimately struck some of claims which it held had already been litigated; but allowed others to stand, although they were not properly pled. The plaintiffs were allowed to amend their claims to properly plead nuisance, negligence and public misfeasance.

Case law update by: Caroline Alexander