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Speaker's Corner: To strike or not to strike

A motion to strike is an important tool in the litigator’s arsenal, often used to achieve a speedy end to litigation. The courts have repeatedly held that the test is whether it is plain and obvious that the pleading, construed generously, discloses no reasonable cause of action or defence assuming the facts pleaded to be true. But what happens when the court is faced with a novel claim — one that does not fit neatly into the traditional confines of existing legal doctrines, such as negligence? The answer is that public policy considerations must move in to fill the gap.

Over the last few years, there has been a series of novel claims advanced against various public authorities, some of which have survived motions to strike and others that have failed. The common thread running through these cases is the court’s careful consideration of its duty not to cross into the role of lawmaker, a role reserved for elected representatives. Balanced against that is the role of the court to consider claims founded upon an evolution of the common law. As observed in Paradis Honey Ltd. v. Canada, 2015 FCA 89, “The common law — and particularly public law — is not a petrified forest.” In deciding whether to allow a novel claim to proceed, the courts weigh whether public policy considerations support expanding the common law to accommodate such claims.  

Take the example of the beekeepers’ case in Paradis Honey Ltd., which involved a proposed class action  against, among others, the minister of Agriculture. The complaint was that since 2007 the government had adopted a blanket policy prohibition on the importation of bee “packages,” which are cereal-box-sized containers holding small colonies used to replace colonies lost in the winter. The beekeepers sought monetary relief for what they described as an “unauthorized, scientifically unsupported blanket policy” preventing them from exercising their legal rights to apply for importation permits.

The Federal Court of Appeal characterized the claim as “novel” and stated that it should not be restricted to principles underlying the tort of negligence. The court criticized past attempts to apply the analytical framework for negligence to cases involving public authorities, stating, “[W]e have been using a screwdriver to turn a bolt.” It reviewed the beekeepers’ claim under the umbrella of administrative and public law and concluded that it was not plain and obvious that a court would exercise its discretion against giving the beekeepers monetary relief.

Approximately two months later, a decision involving a claim against the Toronto Police Services Board surfaced in Patrong v. Banks et al, 2015 ONSC 3078. The claim involved a man who was shot in a drive-by shooting. The shooter was a violent criminal known to the police. Notwithstanding arrest orders from senior officers, the shooter was not arrested. The injured man issued a claim against the police for compensation. A motion to strike was filed. The motion was dismissed. While the court concluded that the claim was a viable claim in negligence, it also determined that the claim for monetary relief was supported by broader public law principles. The court observed that “the common law is flexible enough to develop principles that fit cases brought against government actors.”

Fast forward to the recent decision of the Supreme Court of Canada in Ernst v. Alberta Energy Regulator, 2017 SCC 1, where the plaintiff claimed that the regulator breached her right to freedom of expression and sought damages under s. 24(1) of the Charter. The plaintiff was a critic who often spoke to the media about her concerns in respect of oil and gas development near her home. She characterized the regulator’s conduct as punitive, falling outside the scope of an adjudicative function. The judge at first instance struck the claim as barred by an immunity provision contained in s. 3 of the Energy Resources Conservation Act. The Court of Appeal agreed and dismissed the plaintiff’s appeal.  

At the Supreme Court of Canada, the plaintiff argued that s. 43 was unconstitutional because it purported to bar her claim for Charter damages. Focusing on the constitutionality of s. 43, the majority dismissed the appeal. The dissent, by contrast, focused on the test for striking out claims. Characterizing the plaintiff’s claim as novel, it determined that it was not plain and obvious that the alleged conduct taken purely to punish a member of the public would necessarily be barred by s. 43. It viewed the allegations made by the plaintiff as serious, which, if proved, could rise to the level of abuse of power by a public authority aimed at curtailing freedom of expression.

While the general rule is that courts must err on the side of permitting novel but arguable claims to proceed, these cases demonstrate that one of the primary driving forces behind novel claims is public policy: the protection against bad faith and improper government action in Paradis Honey Ltd., the protection of the public from violent criminals in Patrong and the importance of Charter compliance as a foundational principle of good governance in the dissent in Ernst. Where there are significant public policy issues at stake, room will be made for novel claims.  

Thus, for lawyers and judges alike faced with claims involving maladministration or conduct offensive to public law values, the question is whether it is fair and reasonable that the public authority ought to compensate the injured parties for the losses alleged. If the answer is yes, then the claim, no matter how novel, should likely persist. If the answer is no, then the claim should likely perish. Either way, novel claims and the lawyers who pursue them are what ultimately allow the development of the common law to march forward.

Nadia Campion is a partner and litigator at Polley Faith LLP.

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