Introduction
Few procedural tools in Ontario civil litigation are as powerful, or as frequently misunderstood, as the motion to strike. When properly used, it acts as an early gatekeeping mechanism that removes legally defective claims or defences before the parties incur the substantial costs of discovery and trial. When misused, it becomes another interlocutory skirmish that delays the resolution of the real dispute.
The modern law governing motions to strike sits at the intersection of two competing principles. On the one hand, the courts recognize that parties should not be forced to litigate claims that are legally untenable. On the other hand, courts are reluctant to prevent claims from proceeding where there remains any realistic possibility that the claim could succeed.
The balance between these principles has been shaped by decades of jurisprudence and is now well established. Yet the procedural landscape in which motions to strike operate may soon change dramatically. The Civil Rules Review Working Group[1] has identified the province’s “motions culture” as one of the drivers of delay and cost in civil litigation and has proposed reforms designed to substantially reduce interlocutory motion practice. On the subject of motions reform, I commend to you the recent blog I wrote on Substack, “Out of the Trenches: Civil Rules Reform of Motions in Ontario”.[2]
Against that backdrop, it is worth examining how motions to strike currently operate, why they are brought, the legal standard governing them, and how they may evolve under the proposed civil justice reforms.
The Current Rule: Motions to Strike Under Rule 21
Motions to strike are governed primarily by Rule 21 of the Rules of Civil Procedure. The rule allows a party to challenge a pleading on several grounds, including that it discloses no reasonable cause of action or defence, that it may prejudice or delay the fair trial of the action, or that it is scandalous, frivolous, or vexatious.
The most commonly invoked provision is Rule 21.01(1)(b)[3], which allows the Court to strike a pleading that discloses “no reasonable cause of action or defence”.
This form of motion is decided solely on the pleadings. No evidence is admissible. The court assumes the facts pleaded are true and determines whether those facts, if proven, could possibly support a recognized cause of action in law.
If the answer is no, the claim is struck.
If the answer is yes, or even possibly yes, the action proceeds.
This structure reflects a fundamental principle of civil litigation that novel legal claims should generally be permitted to develop unless they are clearly doomed to fail.
Why Motions to Strike Are Brought
Motions to strike serve several strategic and procedural purposes in litigation.
The most obvious purpose is the early elimination of legally defective claims. If a pleading discloses no viable cause of action, forcing the parties to proceed through discoveries, expert reports, and trial preparation would impose unnecessary cost and delay.
Motions to strike are therefore frequently used where a plaintiff has pleaded a cause of action that does not exist in law or where the material facts required to support a recognized cause of action have not been pleaded.
Another common use of the motion is to narrow the issues. A claim may contain multiple causes of action, some viable and others not. In those circumstances, the motion may be used to remove portions of the claim while allowing the remainder of the action to proceed.
The motion can also be used to address pleadings that are improperly drafted, excessively vague, or contain allegations that are irrelevant or scandalous.
Finally, the motion to strike can function as a procedural checkpoint in complex litigation. By testing the legal sufficiency of the claim at an early stage, the Court ensures that litigation resources are directed only toward disputes that raise legally viable issues.
The Governing Legal Standard
The legal test governing motions to strike has been firmly established by the Supreme Court of Canada. This test originated in the Supreme Court of Canada’s decision in Hunt v. Carey Canada Inc., [1990] 2 SCR 959[4], a seminal case I distinctly remember studying in my bar admission course in the early ‘90s. In that case, the Court held that a pleading should only be struck where it is “plain and obvious” that the claim cannot succeed. The case arose from litigation brought by several plaintiffs who alleged that they had suffered injury as a result of exposure to asbestos products manufactured or distributed by a number of defendants. One of the defendants sought to strike portions of the claim on the basis that British Columbia’s Business Practices Act[5] created a statutory bar preventing the action from proceeding. The defendant argued that the statute precluded the plaintiffs from advancing the claim in the manner pleaded and that the action was therefore legally untenable at the outset.
Writing for the majority, Justice Wilson rejected the attempt to terminate the action at the pleading stage. The Court held that it was not “plain and obvious” that the statutory provision relied upon by the defendant necessarily barred the claim. Because the legal question required a fuller examination of the statutory scheme and its interaction with the pleaded causes of action, the Court concluded that the matter should proceed to trial. In doing so, the Court emphasized that the threshold for striking a claim is deliberately high. A claim should not be struck merely because it appears weak, novel, or unlikely to succeed. Rather, the power to strike should be exercised only in the clearest of cases where it is certain that the pleading discloses no viable cause of action even if all of the alleged facts are assumed to be true.
The modern articulation of the test was reaffirmed in R. v. Imperial Tobacco Canada Ltd. 2011 SCC 42[6], where the Supreme Court of Canada restated the governing principles for motions to strike in clear and authoritative terms. The litigation arose from an action brought by the Government of British Columbia seeking to recover billions of dollars in healthcare costs allegedly incurred as a result of tobacco-related illnesses. The province relied on the Tobacco Damages and Health Care Costs Recovery Act[7], which created a statutory cause of action allowing the government to pursue tobacco manufacturers for the cost of treating smoking-related disease. The defendant tobacco companies moved to strike the claim, arguing that the legislation was unconstitutional and that the pleadings disclosed no viable cause of action.
Writing for a unanimous Court, Chief Justice McLachlin reaffirmed the stringent threshold governing motions to strike. The Court summarized the governing rule succinctly. A claim will only be struck if it is plain and obvious that the pleading discloses no reasonable cause of action. In applying that principle, the Court emphasized that judges must assume the pleaded facts to be true unless those facts are manifestly incapable of proof. The task of the Court on such a motion is therefore not to weigh evidence, assess credibility, or determine the likelihood that the plaintiff will ultimately succeed. Rather, the motion serves a far narrower function. It tests only the legal sufficiency of the pleadings, namely whether, assuming the facts alleged are true, the claim discloses a cause of action recognized by law.
Additional Leading Authorities
Several other decisions from the Supreme Court of Canada have refined the principles governing motions to strike.
In Operation Dismantle v. The Queen [1985] 1 SCR 441[8], the Court held that novel legal claims should generally be permitted to proceed unless it is clear that the claim cannot succeed. The Court reasoned that the development of the law would be stifled if courts prematurely terminated new legal arguments at the pleading stage.
In Odhavji Estate v. Woodhouse 2003 SCC 69[9], the Court reaffirmed that pleadings must be read generously and with an eye toward permitting arguable claims to proceed. The Court emphasized that the purpose of pleadings is to define the issues, not to serve as a technical trap for litigants.
Another significant and most recent modern decision I found is Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19[10]. In that case, the Supreme Court of Canada reaffirmed the traditional “plain and obvious” test while emphasizing that courts should not hesitate to strike claims that have no reasonable prospect of success. The Court cautioned that while novel legal claims should sometimes be permitted to develop, courts must also guard against allowing speculative or untenable causes of action to proceed simply because they are framed as innovative arguments. The decision therefore reflects a subtle recalibration of the motions-to-strike analysis. While the threshold remains high, courts are encouraged to prevent hopeless claims from advancing through costly litigation where the law clearly provides no viable path to recovery.
Ontario appellate courts have repeatedly applied these principles. For example, the Ontario Court of Appeal reiterated in Das v. George Weston Limited 2018 ONCA 1053[11] that courts must avoid striking claims that have any reasonable prospect of success.
Together, these decisions confirm that the motion to strike remains an exceptional remedy designed to remove only those claims that are clearly untenable.
The Practical Role of Motions to Strike
Despite the high legal threshold, motions to strike remain a significant feature of Ontario civil litigation.
They are particularly common in certain types of cases, including:
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professional negligence actions
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defamation claims
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class proceedings
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Charter litigation
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complex commercial disputes
In many of these cases, the legal viability of the claim is itself a central issue.
However, the increasing use of interlocutory motions has also drawn criticism from the judiciary and policymakers. Motions can consume substantial court resources and may delay the progress of the underlying action.
This concern has become a central theme in Ontario’s civil justice reform efforts.
The Civil Rules Reform and the “Motions Culture”
The Civil Rules Review Working Group identified a pervasive motions culture as one of the drivers of delay and cost in Ontario civil litigation.
The report notes that the current procedural framework allows parties to engage in extensive interlocutory motion practice, often focusing litigation on procedural disputes rather than the substantive merits of the case.
The Working Group concluded that this culture contributes significantly to the slow pace and high cost of civil litigation in Ontario.
In response, the report proposes a fundamental shift in how interlocutory issues, including motions to strike, are handled.
The Proposed Future: Fewer Formal Motions
One of the most significant reforms proposed by the Civil Rules Review is the screening of most interlocutory disputes through directions conferences. See my recent piece, “Judicial Oversight Reimagined: From Passive Arbiter to Active Case Manager”.[12]
Under the proposed system, parties seeking interlocutory relief would first raise the issue at a case conference before a judge or judicial officer. Formal motions would be permitted only where necessary.
The intention is to resolve procedural disputes quickly and informally wherever possible.
This approach reflects a broader policy objective, shifting the litigation process away from party-driven motion practice and toward court-managed proceedings.
The report explicitly states that reducing interlocutory motion practice is essential to controlling costs and shortening timelines in civil litigation.
What This Means for Motions to Strike
If the proposed reforms are implemented, I see that the role of motions to strike is likely to change in several important ways.
First, fewer such motions may be brought as standalone formal proceedings. Judges may instead address pleading deficiencies at early case conferences and direct amendments without requiring a full motion record.
Second, the courts may become more focused on case management solutions rather than procedural elimination of claims. In other words, rather than striking pleadings outright, courts may prefer to require clarification, amendment, or narrowing of issues.
Third, the reforms are designed to move cases toward early dispositive hearings. In that environment, some legal arguments currently raised through motions to strike may instead be addressed through summary hearings or early adjudication on the merits.
Finally, the new procedural model, particularly the proposed reliance-based evidence system and tighter case timelines, may reduce the strategic incentive to bring early technical motions.
If the system works as intended, I think that litigation energy will shift away from procedural battles and toward the substantive resolution of disputes.
Conclusion
The motion to strike has long served as an important procedural safeguard in Ontario civil litigation. It prevents legally untenable claims from consuming judicial resources and protects litigants from being forced to defend actions that are doomed to fail.
At the same time, the motion reflects a delicate balance. Courts must ensure that only clearly defective claims are removed while allowing arguable cases to proceed so that the law can continue to evolve.
That balance is now being reconsidered within a broader re-examination of Ontario’s civil justice system. The Civil Rules Review recognizes that the current system has become overly dependent on interlocutory motion practice and that a new procedural culture is required to reduce delay and cost.
If the proposed reforms are implemented, motions to strike will not disappear. But they will likely become less central to the procedural landscape.
In their place may emerge a more actively managed litigation system, one in which procedural disputes are resolved quickly, early, and with a stronger focus on the ultimate goal of civil justice, achieving fair and timely determination of disputes on their merits.
[1] https://www.ontariocourts.ca/scj/files/pubs/2025-12-15-final-policy-proposal.pdf
[3] https://www.canlii.org/en/commentary/doc/2021CanLIIDocs2008
[4] https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/657/index.do
[5] https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/04002_00
[6] https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7957/index.do
[7] https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_00030_01
[8] https://www.canlii.org/en/ca/scc/doc/1985/1985canlii74/1985canlii74.html
[9] https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2104/index.do
[10] https://www.canlii.org/en/ca/scc/doc/2020/2020scc19/2020scc19.html
[11] https://www.canlii.org/en/on/onca/doc/2018/2018onca1053/2018onca1053.html