Month: June 2024

“The parties agree that the general law of contracts applies in the family law context such that settlement agreements are generally enforceable where there is a meeting of the minds: Lindsay v. Lindsay, 2021 ONSC 7085 (Div. Ct.) (CanLII) at paras. 32-42; see also Gorman v. Gorman, 2021 ONSC 2577 (CanLII) at paras. 64-69.

Here, the Mr. Humphrey says that the Agreement should not be enforced because Mr. Williams repudiated the Agreement thereby depriving Ms. Williams of its benefit, and that Ms. Williams accepted Mr. Williams’ termination. Mr. Humphrey points to the emails as evidence that Mr. Williams repudiated the Agreement after retaining Mr. Cohen because Mr. Cohen refused to confirm the Agreement prior to the offer’s expiry on September 17th, and because a Settlement Agreement was not signed in a timely manner.

The law of repudiation is summarized by the Court of Appeal in Glen Schnarr & Associates Inc. v. Vector (Georgetown) Limited, 2019 ONCA 1012 at paras. 29-32:

Anticipatory repudiation occurs when a contracting party, “by express language or conduct, or as a matter of implication from what he has said or done, repudiates his contractual obligations before they fall due”: G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), at p. 585.

However, an anticipatory repudiation of a contract does not, in itself, terminate or discharge a contract; it depends on the election made by the non-repudiating party: Guarantee Co. of North America v. Gordon Capital Corp., 2000 SCC 25 (CanLII), [1999] 3 S.C.R. 423, at p. 440; Brown v. Belleville (City), 2013 ONCA 148, 114 O.R. (3d) 561, at para. 42. As Cronk J.A. stated in the latter decision at para. 45:

It appears to be settled law in Canada that where the innocent party to a repudiatory breach or an anticipatory repudiation wishes to be discharged from the contract, the election to disaffirm the contract must be clearly and unequivocally communicated to the repudiating party within a reasonable time. Communication of the election to disaffirm or terminate the contract may be accomplished directly, by either oral or written words, or may be inferred from the conduct of the innocent party in the particular circumstances of the case: McCamus, at pp. 659-61. [Emphasis added.]

The test for repudiation is objective, requiring me to consider whether a reasonable person, considering the surrounding circumstances, would conclude that the breaching party no longer intends to be bound by the contract: Remedy Drug Store Co. v. Farnham, 2015 ONCA 576 (CanLII), at para. 45-46.

Dennison J. in Gorman, supra, at para. 70, helpfully summarized the factors I am to consider when determining whether to enforce a contract in the family law setting, including: whether the parties were represented by counsel, whether the written material supports a prima facie agreement, whether the evidence supports a shared intention to be bound by the written negotiations, whether there was some final act or determination required prior to the settlement being final and binding, and any injustice occasioned by enforcing or not enforcing the agreement. At a policy level, I am to consider whether enforcement would encourage negotiated settlement and discourage litigation.”

            Andrews v. Andrews, 2022 ONSC 3867 (CanLII) at 16-20

 

“A finding of unjust enrichment requires the establishment of three elements: enrichment, a corresponding detriment and an absence of a juristic reason for the enrichment.  The remedies for unjust enrichment include monetary awards, and constructive or resulting trusts.

A resulting trust will arise when title to a property is in one party’s name, but that party, because he or she is a fiduciary, or gave no value for the property, is under an obligation to return it to the original title owner:  Pecore v. Pecore, 2007 SCC 17 (CanLII), [2007] 1 S.C.R. 795, at para. 20.

In the present case, the properties were not transferred to Charbel Kajjouni by the other family members.  Rather, the other family members assert that they funded the purchase of the properties, either from their own resources, or from mortgages that they negotiated and assumed responsibility for.  In other words, the family members assert the existence of a purchase money resulting trust which presumes that a person who advances purchase money, but does not take title to a property, intended to assume a beneficial interest in the property in proportion to his or her contribution to the purchase price:  Nishi v. Rascal Trucking Ltd., 2013 SCC 33 (CanLII), [2013] 2 S.C.R. 438, at para. 29.  For the presumption of a purchase money resulting trust to apply, the persons claiming to be beneficial owners must first show that they were the ones who advanced the purchase money:  Bao v. Mok, 2019 ONSC 915, at para. 69.

Kajjouni v. Kajjouni, 2022 ONSC 3757 (CanLII) at 11-13

“The applicable legal principles include the following:

a.  Section 2of the Partition Act empowers the court to order the sale of a jointly owned property, including a matrimonial home. McNeil v. McNeil 2020 ONSC 1225 (SCJ).

b.  A joint tenant has a prima facie right to an order for the partition or sale of property held with another joint tenant.  Kaphalakos v. Dayal2016 ONSC 3559 (SCJ); Marchese v. Marchese  2017 ONSC 68515 (SCJ); Jama v. Basdeo  2020 ONSC 2922 (SCJ); Davis v. Davis 1953 CanLII 148 (ON CA); Brienza v. Brienza 2014 ONSC 6942 (SCJ).

c.  A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made.  Jama v. Basdeo; Steele v Doucett2020 ONSC 3386 (SCJ).

d.  The other joint tenant has a corresponding obligation to permit the sale.  These are fundamental rights flowing from joint tenancy. Steele v Doucett.

e.  The onus is on the party who opposes a sale to establish that there is a sufficient reason, recognized in law, why the court should exercise its discretion to refuse a sale.  Afolabi v. Fala, 2014 ONSC 1713(SCJ).

f.  Generally, the party opposing the sale must show malicious, vexatious or oppressive conduct relating to the partition and sale issuein order to avoid the sale. Silva v. Silva  (1990) 1990 CanLII 6718 (ON CA), 1 O.R. (3D) 436 (ON CA); Jama v. Basdeo; Steele v Doucett.

g.  Each case must be considered on its own facts.  The court must consider all relevant factors in exercising its discretion.  Davis v. Davis1953 CanLII 148 (ON CA), [1954] O.R. 23 (C.A.); Steele v Doucett.

h.  In family law cases, an order under the Partition Actshould generally not be made until any dispute related to the property has first been determined.   Maskewycz v. Maskewycz (1973) 1973 CanLII 603 (ON CA), 2 O.R. (2d) 713 (ON CA).

i.  The Family Law Actdoes not displace the Partition Act.  But in family cases a partition application should generally not be granted where it can be shown that a legitimate family law claim would be unfairly prejudiced.  Silva v. Silva;  Parent v. Laroche 2020 ONSC 703 (SCJ); Latcham v. Latcham (2002) 2002 CanLII 44960 (ON CA), 27 R.F.L. (5th) 358 (ON CA); Dulku v. Dulku 2016 CarswellOnt 16066 (SCJ).

j.  In assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale – both positive and negative – in relation to the interests of both joint tenants, and the family as a whole.  Where the financial or other circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale.  Zargar v Zarrabian2016 ONSC 2900 (SCJ); Giglio v Giglio 2015 ONSC 8039 (SCJ); Keyes v. Keyes 2015 ONSC 1660 (SCJ).

k.  More to the point, where it is evident at the temporary motion stage that monthly carrying costs are currentlyunsustainable, it is inappropriate to indefinitely perpetuate financial hardship for the entire family.  Quite commonly, house expenses which were barely affordable when the family unit was intact immediately become unaffordable once the same income has to fund two separate households.   Sometimes harsh new realities need to be faced sooner as opposed to later – in order to avoid even more painful consequences such as power of sale proceedings or even bankruptcy.

l.  The court must consider the impact of a proposed sale on children or a vulnerable spouse — including the emotional impact, and the fundamental need to ensure that they have appropriate housing.  Delongte v. Delongte2019 ONSC 6954 (SCJ); Kaing v. Shaw 2017 ONSC 3050 (SCJ).  The availability and affordability of alternate housing must be considered.  As part of the analysis, support obligations may need to be co-ordinated – even on a temporary basis – to ensure that any party displaced by a sale will have the resources to arrange reasonable replacement accommodation.

m.  Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course.  Fernandes v Darrigo2018 ONSC 1039 (SCJ). The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible.  Kereluk v. Kereluk, 2004 CanLII 34593 (SCJ).

n.  Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage.  The availability of a trial within a short period might reduce the pressure for an immediate sale. Goldman v. Kudeyla, 2011 ONSC 2718(SCJ).

o.  On the other hand, a request for sale during summer months may entail some timeliness if seasonal market opportunities are favourable; or to reduce the likelihood of a child having to change residence (and possibly catchment area) while a school year is in session.

p.  The stage of a child’s academic progress might also be relevant.  Sale might be delayed if it would allow a child to complete a certain grade level before an inevitable switch to another school.  On the other hand, immediate sale might be more appropriate if the child happens to be transitioning to a new school in any event.

q.  But the mere existence of children in a household is not in itself a sufficient basis to oppose a sale.  A generic statement that children enjoy living in their current house or that they will be unhappy if they have to move, is not sufficient.  The party opposing a sale must establish a likely negative impact more serious than the inevitable adjustments and disruptions which all families face when parents decide to separate.

r.  A pending equalization claim may also be relevant.  The court cannot compel one joint tenant to sell to the other.  Martin v. Martin1992 CanLII 7402 (ON CA).  Nor can it give either joint tenant a right of first refusal.   Dibattista v. Menecola 1990 CanLII 6888 (ON CA).  But a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home.  If a sufficiently particularized proposal seems viable — and especially if it would benefit a child — sale should be delayed to allow proper consideration of that option. Chaudry v. Chaudry 2012 ONSC 2149 (SCJ).

s.  The court must consider and attempt to guard against potential prejudice.  Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage?”

          Dhaliwal v. Dhaliwal, 2020 ONSC 3971 (CanLII) at 16

“The following general principles govern the use of the court’s power to find a party in civil contempt of court for breaching a court order:

1. 1. 1. For a party to be found in contempt of court for breaching a court order, three elements must be proved beyond a reasonable doubt: (1) the order alleged to have been breached must state clearly and unequivocally what should and should not be done; (2) the party alleged to have breached the order must have had actual knowledge of it; and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 32-35; Greenberg v. Nowack, 2016 ONCA 949, 135 O.R. (3d) 525, at paras. 25-26.
      2. Exercising the contempt power is discretionary. Courts discourage the routine use of this power to obtain compliance with court orders. The power should be exercised cautiously and with great restraint as an enforcement tool of last rather than first resort. A judge may exercise discretion to decline to impose a contempt finding where it would work an injustice. As an alternative to making a contempt finding too readily, a judge should consider other options, such as issuing a declaration that the party breached the order or encouraging professional assistance: Carey, at paras. 36-37; Chong v. Donnelly, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras. 9-12; Valoris pour enfants et adultes de Prescott-Russell c. K.R., 2021 ONCA 366, at para. 41; and Ruffolo v. David, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.
      3. When the issue raised on the contempt motion concerns access to children, the paramount consideration is the best interests of the children: Ruffolo, at para. 19; Chong, at para. 11; and Valoris, at para. 41.

…

It is especially important for courts to consider such options in high-conflict family disputes such as this one: Chong, at para. 12; Valoris, at para. 41. Otherwise, there is a danger that contempt proceedings may exacerbate the parental conflict to the detriment of the children. In appropriate cases, a staged approach, in which a declaration of breach precedes the opprobrium of a formal contempt order, can give the parties pause to reflect on their conduct and work on cooperative solutions in the best interests of their children. When, however, the court considers that a contempt order is truly a last resort and would not work an injustice, it may still decide in its discretion to make a formal order of contempt.”

            Moncur v. Plante, 2021 ONCA 462 (CanLII) at 10 & 20

“A plaintiff in a defamation case does not need to prove that they suffered a financial loss in order to be awarded damages:  Mudford v. Smith, 2009 CanLII 55718 (ON SC), [2009] O.J. No. 4317 (S.C.J.), aff’d 2010 ONCA 395.  As Justice Perell observed in Mina Mar Group v. Divine, 2011 ONSC 1172, at para. 13, general damages in defamation cases serve three purposes: (1) to compensate the plaintiff for the distress suffered from the defamation (2) to repair the harm done to their personal and professional reputation; and (3) as a “vindication of reputation”. This third objective, which may perhaps be more easily understood as “restoration of reputation”, shows that general damages for defamation, unlike damages for other wrongs, may have a purely symbolic function.

Damages for defamation vary significantly.  Ms. Post directed me to four cases — Emeny v. Tomasewski, 2019 ONSC 3298; Rodrigues v Rodrigues, 2013 QBQB 718; Warman v. Grosvenor (2008), 2008 CanLII 57728 (ON SC), 92 OR (3d) 663; and Bains v. 1420546 Ontario Inc., 2011 ONSC 3686 —where courts have awarded general damages from $50,000 to $250,000. This range underscores how general damages awards depends on the facts of each case.

In Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130, at p. 1203, the Supreme Court of Canada set out factors to consider in assessing damages for defamation. These factors, and the evidence of Ms. Hillier’s actual malice, support a significant damages award in this case.”

          Post v. Hillier, 2022 ONSC 3793 (CanLII) at 24-26

“In P.P. v. D.D. 2017 ONCA 180, Rouleau J.A. concisely summarized the tort of sexual battery at paragraphs 71 and 72:

The constituent elements of the tort of “sexual battery” are the same as those of the tort of battery. That is, the plaintiff must prove on a balance of probabilities that the defendant intentionally touched the plaintiff in a sexual manner. To prove a battery, the plaintiff must also demonstrate that the interference with his or her body was “harmful” or “offensive”, but this element is implied (assuming a lack of consent) in the context of a sexual battery: Scalera, at para. 22.

An apparent consent to sexual touching will be invalid if has been obtained by duress, force or threat of force, given under the influence of drugs, secured through deceit or fraud as to the nature of the defendant’s conduct, or obtained from someone who was legally incapable of consenting or where an unequal power relationship is being exploited: Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226, [1992] S.C.J. No. 60, at pp. 246-47 S.C.R.”

          W.S. v. R.S., 2023 ONSC 4287 (CanLII) at 14

“Mr. Carducci submits there was a “fundamental mistake”, a “mutual mistake”, a lack of “ad idem”, “hence there is no contract”. Here, Mr. Carducci seeks to rely on equity to advance its position to set aside the Life Insurance provision in the Minutes of Settlement and grant Mr. Carducci ½ of the Life Insurance proceeds. As stated above, the court should be extremely reluctant to set aside one paragraph of the Minutes of Settlement.  Particularly, where many of the other terms have already been complied with.

On the issue of unilateral mistake, the Court of Appeal in Deschenes stated:

[32]      As noted by Côté J.A. in Radhakrishnan, a settlement agreement may also be rescinded on the basis of unilateral mistake. I will explain why I reject the appellants’ submission that the motion judge, after finding a “unilateral mistake by the Diocese”, erred in this case in rescinding the settlement agreement on this basis. The law on rescission for unilateral mistake is that a party may seek rescission of a contract for its own unilateral mistake only where the mistake goes to a material term of the contract, where the other party knows or ought to know of the mistake, and where it would be unconscionable for the second contracting party to rely on the contract: 256593 B.C. Ltd. v. 456795 B.C. Ltd. (1999), 1999 BCCA 137 (CanLII), 171 D.L.R. (4th) 470 (B.C.C.A.), at p. 479. See also Gerald H. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Thomson Reuters Canada Limited, 2011), at pp. 252-54; Toronto Transit Commission v. Gottardo Construction Limited et al. (2005), 2005 CanLII 31293 (ON CA), 257 D.L.R. (4th) 539 (Ont. C.A.), at para. 30, leave to appeal refused, [2005] S.C.C.A. No. 491….

First, I am not persuaded that Mr. Carducci has established a “mistake” in law.  In my view, this is a situation where a party now realizes they made a bad deal (at least on one term) and now wants the court to intervene.  In any event, this was a unilateral mistake. I reject Mr. Carducci’s submission that he “did not have all of the details and amounts of the Life Insurance available”. Mr. Carducci was also a policy holder and could easily have ascertained the cash surrender value and the state of the unpaid premiums.   I reject Mr. Carducci’s submission that if all the details and the amounts of the Life Insurance policy were known at the time of the negotiations of the Minutes of Settlement, that it “would have resulted in a different agreement”.  That is hindsight and not a legal basis to overturn a term of an agreement.

Second, for there to be a mutual mistake after the execution of an agreement, there must be evidence that establishes objectively, a mistake was made by both parties. Then, the court has the jurisdiction to set aside the agreement. While, the term “mutual mistake” is loosely used by Mr. Carducci’s counsel, there is no evidence that Mrs. Carducci was subject to the same alleged mistake.”

            Carducci v. Carducci, 2022 ONSC 3683 (CanLII) at 55-58

“The test for whether there has been a material change in the circumstances of the child was described as follows in Goertz, at paras 10-13:

10      Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in the circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody or access order absent a change in the “condition, means, needs or other circumstances of the child”. Accordingly, if the applicant is unable to show the existence of a material change, the inquiry can go no farther: Wilson v. Grassick (1994), 1994 CanLII 4709 (SK CA), 2 R.F.L. (4th) 291 (Sask. C.A.).

11      The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynes v. Baynes (1987), 1987 CanLII 2918 (BC CA), 8 R.F.L. (3d) 139 (B.C. C.A); Docherty v. Beckett (1989), 1989 CanLII 8869 (ON CA), 21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v. Wesson (1973), 1973 CanLII 1951 (NS SC), 10 R.F.L. 193 (N.S. T.D.), at p. 194.

12      What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 1991 CanLII 839 (BC SC), 35 R.F.L. (3d) 169 (B.C. S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I. S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. “What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place”: J.G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.

13      It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

Further, a variation of a final parenting order cannot be made on consent unless there is a finding of a material change in circumstances.   In Persaud v. Garcia-Persaud, 2009 ONCA 782, the Ontario Court of Appeal stated:

[3]              To begin with, the motion judge was without jurisdiction to make the order in question.  As this court has made clear, jurisdiction to vary a custody and access order is dependent on an explicit finding of a material change in circumstances since the previous order was made.  If an applicant fails to meet this threshold requirement, the inquiry can go no further: see Litman v. Sherman (2008), 2008 ONCA 485 (CanLII), 52 R.F.L. (6th) 239 (Ont. C.A.).  The matter is jurisdictional and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation.  In the present case, no such finding was made.  Thus, as has been stated, the motion judge was without jurisdiction to vary the original order.

[4]              A material change in circumstances is one which: (1) amounts to a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) materially affects the child; and, (3) was either not foreseen or could not have been reasonably contemplated by the judge making the original order: see Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 13.  None of these factors are addressed in the brief reasons of the motion judge nor can they be found on a broader reading of the record as a whole, including the exchanges that the motion judge had with counsel.  Indeed, it is highly questionable whether the third factor could have been made out, given the motion judge’s numerous statements to the effect that the issues and differences between the parties were but a rehash of that which he heard at the time he made the initial custody and access order.

[5]              Moreover, on this record, it is not clear how these factors could have been determined, given the significant conflict in the affidavit evidence of the parties.  In such circumstances, a variation motion cannot be properly determined on affidavit material.  As this court has stated, resolution of conflicting evidence on critical matters requires a trial of the issues, in which viva voce evidence is called.  See this court’s decision in Schnarr v. Schnarr (2006), 2006 CanLII 190 (ON CA), 22 R.F.L. (6th) 52.

A change in circumstances is “material” if it is significant and long lasting: Roloson v. Clyde, 2017 ONSC 3642, paras. 49-51.”

          Kapadia v. Kwok, 2023 ONSC 3700 (CanLII) at 14-16

“A classic family law custody dispute gave rise to the Children’s Lawyer’s involvement in this case. Over the past several years, courts have taken great initiative to seek out and consider the views and preferences of the child. Professors Birnbaum and Bala explain:

The movement towards child inclusion in decision-making in education, medical treatment, and various areas of the law, including separation and divorce, has grown over the last decade. Studies have explored children’s rights as citizens, children’s perspectives on family relationships and what is a family, and children’s attitudes about parental separation and participation in the decision-making process about post-separation parenting. Research clearly suggests that children’s inclusion in the post-separation decision-making process is important to the promotion of their well-being. [Footnotes omitted.]

Indeed, art. 12 of the Convention requires that:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Children are among the most vulnerable members of society. Courts, administrative authorities and legislative bodies have a duty to recognize, advance and protect their interests. When children are the subject of a custody dispute or child protection proceedings, they are at their most vulnerable. Exposure to conflict has been called the “single most damaging factor for children in the face of divorce”: per Backhouse J., in Graham v. Bruto, [2007] O.J. No. 656 (S.C.), at para. 65, aff’d 2008 ONCA 260.

It has always been a challenge for family law courts to find a way for children to express their views without exposing them to further trauma or causing more damage to the family. Those who work in the family law system are all too aware that children remain part of the family long after a judicial decision is reached. The process of determining the child’s true wishes and preferences requires delicacy, for to undertake the process without expertise may further hurt the child and fracture family relationships.

The Children’s Lawyer has been recognized as a model for addressing this challenge. The Honourable Donna J. Martinson and Caterina E. Tempesta, wrote that:

In Canada, the most expansive child representation program is offered by the Office of the Children’s Lawyer…[it] may serve as a model for other jurisdictions in promoting access to justice for children by ensuring that their views are heard in court processes.”

Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 (CanLII) at 62-66

“In Deep v. Ontario, 2004 CanLII 14527 (ON SC); affirmed 2005 CanLII 10046 (ON CA), Spence J. summarizes the applicable tests under Rule 21 and Rule 25 for striking out pleadings as follows (at paras. 32-40):

Rule 21

[32]      Rule 21.01(1)(b) provides that a judge may strike out a pleading if it discloses no reasonable cause of action. The purpose of a rule 21.01(1)(b) motion is to test whether a plaintiff’s allegations state a legally sufficient or substantively adequate claim. Where it is plain and obvious that is [sic] discloses no cause of action, it should be struck: Rule 21.01(1)(b); Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 at 976-977.

[33]      A claim will be found to be legally insufficient when either the allegations it contains do not give rise to a recognized cause of action, or it fails to plead the necessary legal elements of an otherwise recognized cause of action. As explained by Borins J.A. in Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4^th) 257 at p. 264 (C.A.),

In some cases, a statement of claim will be vulnerable to dismissal under rule 21.01(1)(b) because the plaintiff has sought relief for acts that are not proscribed under the law. The typical textbook example is a statement of claim that alleges that the defendant made a face at the plaintiff, or that the defendant drove a car of an offensive colour. In other cases, however, the statement of claim may be defective because it has failed to allege the necessary elements of a claim that, if properly pleaded, would constitute a reasonable cause of action.

[34]      In order to survive the second type of rule 21.01(1)(b) motion, a plaintiff must, at minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. The absence of a necessary element of the cause of action will constitute a radical defect on the basis of which it is plain and obvious that the plaintiff cannot succeed. Accordingly, such a claim should be struck out.

[35]      On a motion under Rule 21, the plaintiff has the benefit of an assumption that the facts pleaded are true or capable of being proven. Accordingly, the court is left to consider the legal sufficiency of the plaintiff’s claim stated in its best and most positive light by the plaintiff himself. However, a court is not required to take “allegations based on assumptions and speculations” as true for the purpose of assessing the cause of action at issue. A party may therefore not supply a missing element of a cause of action by pleading speculative allegations: Region Plaza Inc. v. Hamilton Wentworth (Regional Municipality) (1990), 1990 CanLII 6761 (ON SC), 12 O.R. (3d) 750 at 754 (H.C.).

[36]      Rule 21.01(1)(b) permits the court to strike out less than the entire pleading, where the portion being struck is a distinct purported cause of action. In exercising its discretion, the court should consider whether or not “paring down” the pleadings will actually result in savings of money or time for the parties.

Montgomery v. Scholl-Plough Can. Inc. (1989), 1989 CanLII 4045 (ON SC), 70 O.R. (2d) 385.

Rule 25

[37]      With respect to the need to plead material facts in support of allegations, Rule 25.06 provides that:

25.06 (1)   Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.  R.R.O. 1990, Reg. 194, r. 25.06(1).

(2)     A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.  R.R.O. 1990, Reg. 194, r. 25.06(2).

(8)     Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.  O. Reg. 61/96, s. 1.

[38]      Allegations of legal conclusions are not facts and are insufficient for the purposes of pleading. This is particularly so where allegations of intentional or malicious conduct are made. A plaintiff must plead circumstances, particulars or facts which are sufficient to enable a trier of fact to properly infer intentional or malicious conduct.

Conacher v. Rosedale Golf Assn. Ltd., [2002] O.J. No. 575 (S.C.J.)

Pispidikis v. Scroggie (2003), 2002 CanLII 23209 (ON SC), 62 O.R. (3d) 596 at paras. 35-36 (S.C.J.)

Wilson v. Toronto (Metropolitan) Police Service, [2001] O.J. No. 2434 at paras. 66-67 (S.C.J.), aff’d., 2002 CanLII 4770 (ON CA), [2002] O.J. No. 383 (C.A.)

[39]      Rule 25.11 empowers the Court to strike out pleadings as follows:

25.11      The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a)     may prejudice or delay the fair trial of the action;

(b)     is scandalous, frivolous or vexatious; or

(c)     is an abuse of the process of the court.

[40] “A pleading that demonstrates a complete absence of material facts will be declared to be frivolous or vexatious. Pleadings that are irrelevant, argumentative, or inserted for colour or that constitute bare allegations should be struck out as scandalous. The same applies to a document that contains only argument and includes unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation.”: Senechal v. Muskoka (District Municipality), [2003] O.J. No. 885 (S.C.J.) at paras. 51, 52.

Courts have held that, absent exceptional circumstances, leave to amend pleadings should generally be granted: Thelwell v. Elaschuk, 2020 ONSC 340 (CanLII), at para. 87; Asghar v. Toronto Police Services Board, 2019 ONCA 479 (CanLII), at para. 9.”

Ramsay v. Family and Children’s Services Niagara, 2022 ONSC 3650 (CanLII) at 8-9