The Court found support for its decision in the felt need for a culture shift in civil justice to give litigants timely and affordable access to the justice system. Accordingly, the Supreme Court confirmed that motion courts are empowered to use the motion to strike or certification motion as a forum to decide the legal viability of novel causes of action and courts may resolve complex questions of law and policy in order to do so. Just as novelty is not a reason to strike a claim, neither is it a reason to allow one to proceed. The Court held that a claim will not survive an application to strike simply because it is novel. In Atlantic Lottery, the Court provided helpful clarification which may alleviate the challenges posed to courts and defendants by novel causes of action. This poses a significant challenge for class action defendants, because they are sometimes forced to either defend dubious legal claims at trial, with all the time and resources which that requires, or settle a claim that has no real merit in law. However, this principle has led plaintiffs to occasionally rest the viability of their claim on the notion that their cause of action was novel, regardless of how legally suspect it may have been. As a result, it is well established that a court should not strike a claim merely because it is novel. Novel causes of action often pose a difficult question for courts hearing motions to strike or to certify class proceedings, because a claim may be unprecedented in the common law, but may nonetheless have merit because the common law evolves through incremental applications of established precedent to new fact scenarios.

Novelty and motions to strike in Atlantic Lottery The question is whether it is plain and obvious, assuming the facts pleaded to be true, that each of the plaintiffs’ pleaded claims disclose no reasonable cause of action. In this respect, the test to be applied under both a motion to strike and a class certification motion are the same. Similarly, on a motion to certify class proceedings, the court will consider, among other things, whether the claim underlying the class proceeding discloses a reasonable cause of action. Motions to strike and the certification of class proceedingsĪ motion to strike allows the court to strike portion of a statement of claim that does not disclose a reasonable cause of action. In keeping with the Supreme Court’s guidance in this regard, recent jurisprudence suggests that Canadian courts are increasingly willing to entertain requests by class action defendants to dismiss - at an early stage of the proceedings - legally dubious claims advanced against them.

Notably, the Court held that a plaintiff’s claim will not survive a motion to strike simply because it is novel. Babstock, the Supreme Court struck all claims underlying a proposed class action about fraud and problem gambling (Osler’s earlier summary of the case is available here). , claims that are unprecedented or innovative).

Last year, the Supreme Court of Canada signalled an important shift in how courts should approach motions to strike pleadings based on novel causes of action (i.e.

Motion to strike meaning