Rule 21 of Ontario’s Rules of Civil Procedure is a mechanism for dealing with situations where a claim brought by a plaintiff is clearly of a kind for which no legal relief is available or where the defence submitted by the defendant is not valid. The rule allows for the determination of certain preliminary issues that may dispose of a legal proceeding without the need for a trial, to avoid delays and have issues disposed of promptly and in accordance with the Rules.
One aspect of Rule 21 is the ability to determine a question of law before trial, which may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs. This provision is often invoked when a claim appears novel, or when some kind of statutory provision or another authoritative source clearly bars the claim. The court will not admit any evidence on such a motion, unless it is given permission or consented to by both parties.
Another aspect of Rule 21 is the ability to strike out a pleading that does not disclose a reasonable cause of action or defence. This can be done by either party, and can be a useful tool in cases where the opposing party’s pleading is clearly flawed and not worth pursuing. The court will consider if the pleading is disclosing a claim or defence that is plain and obvious, frivolous, vexatious, or it is disclosing no reasonable cause of action or defence.
Rule 21.01(3) also allows for defence motions to obtain an order staying or dismissing an action where the claim against the defendant is considered abusive. This is intended to protect defendants from frivolous or vexatious claims, and can be a useful tool in cases where the defendant feels that the claim is not worth pursuing. The court will consider if the claim or proceeding is an abuse of process, and it is brought to achieve collateral objectives or to cause unnecessary delay.
The basic procedure for a Rule 21 motion is outlined in rule 21.01, which defines when relief is available. However, the court’s jurisdiction to decide a question of law is discretionary, and depends on whether there are suitable factual grounds for doing so. The court will typically be more inclined to exercise this jurisdiction if there is an agreed statement of fact, or if the question of law is not tied to a significant factual controversy. In some cases, the court may require the parties to provide evidence to help to decide the question of law, particularly if the question of law is not clear and the court needs to examine the facts to make a decision.
Overall, Rule 21 of Ontario’s Rules of Civil Procedure is a strong mechanism for dealing with preliminary issues that may dispose of a legal proceeding without the need for a trial. It allows for the determination of a question of law, attack on pleadings, and defence motions to obtain an order staying or dismissing an action. It is a useful mechanism for avoiding delays and having issues disposed of promptly and in accordance with the Rules. It also provides a mechanism to protect parties from claims that are frivolous, vexatious, or an abuse of process.
This article is part of the firm’s work in commercial litigation.