“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. (4th) 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