In Ontario, corporate defendants can use Rule 21 of the Rules of Civil Procedure to strike a frivolous commercial lawsuit before expensive discovery begins. The basic court filing fee for a motion at the Superior Court of Justice is generally $175 CAD, though retaining a lawyer to argue the motion often costs between $5,000 and $15,000 CAD.
Facing a corporate lawsuit in Ontario can be an incredibly stressful and expensive experience. However, not every Statement of Claim filed against your business has legal merit.
If your company operates in Toronto, Ottawa, or Hamilton, you might encounter a plaintiff who files a completely baseless claim. 💼 Fortunately, Ontario’s legal system provides a mechanism to dismiss these frivolous lawsuits early, saving your business from months or years of unnecessary litigation costs.
Step-by-Step Process to Strike a Claim in Ontario
Bringing a motion to strike is a highly strategic move. Under Rule 21 of the Rules of Civil Procedure, you are essentially asking a judge to throw out the case because it shows no reasonable cause of action.
Because this involves complex legal arguments, most corporations hire an experienced commercial lawyer to handle the process. 📝 Here is a look at the standard steps involved in bringing this motion at the Superior Court of Justice.
Step 1: Review the Statement of Claim Carefully
As soon as your company is served with a Statement of Claim, you have a limited time to respond (usually 20 days if served in Ontario). Your legal team will carefully review the document to see if it is legally sound.
A claim might be considered frivolous if it asks for a remedy the law does not provide, or if it is clearly an abuse of process. 📍 At this stage, your lawyer will advise whether a Rule 21 motion is the right strategy.
Step 2: Draft and Serve a Notice of Motion
If you decide to proceed, your lawyer will draft a Notice of Motion. This document formally tells the plaintiff and the court that you intend to ask a judge to strike the claim.
The notice will specify the exact rules you are relying on and the specific relief you want, such as dismissing the lawsuit entirely. 📦 It must be served to the opposing party according to strict timeline rules.
Step 3: Prepare the Factum (Legal Argument)
In a Rule 21 motion, you generally cannot rely on outside evidence like witness affidavits to prove the plaintiff is lying. Instead, the court assumes everything in the plaintiff’s claim is true, but looks at whether it forms a valid legal case.
To prove the claim is legally doomed, your lawyer will prepare a Factum. 💡 This is a detailed written argument citing previous case law and statutes that support your position.
Step 4: Attend the Motion Hearing
The final step is the actual hearing at your local Superior Court of Justice, whether that is in Mississauga, London, or Toronto. The lawyers for both sides will present their arguments to a judge.
If the judge agrees the lawsuit is frivolous, they will strike the claim, effectively ending the lawsuit against your business. ✅ If they disagree, you will then have to file a Statement of Defence and proceed to the discovery phase.
How Much Does it Cost in Ontario?
While stopping a lawsuit early saves money in the long run, bringing a motion still requires an upfront financial investment. Corporate clients should prepare for both court fees and legal representation costs.
- Court Filing Fee: Approximately $175 CAD to file a Notice of Motion at the Superior Court of Justice.
- Lawyer Fees: Typically ranges from $5,000 to $15,000+ CAD, depending on the complexity of the legal arguments and the seniority of your lawyer.
- Potential Cost Awards: If you win, the judge may order the plaintiff to pay a portion of your legal fees (usually 40% to 60%).
- Risk of Losing: If you lose the motion, you may be ordered to pay the plaintiff’s costs for having to defend against your motion.
How Long Does the Process Take?
The timeline for a motion to strike depends heavily on the court’s schedule in your specific municipality. In busy jurisdictions like Toronto or Brampton, getting a court date can take time.
Generally, you can expect the entire process, from filing the Notice of Motion to receiving the judge’s decision, to take anywhere from 3 to 8 months. ⌛ During this time, the regular lawsuit timeline is usually paused.
Rule 21 vs. Summary Judgment
It is important to understand the difference between striking a pleading and winning via summary judgment.
| Legal Concept | Rule 21 (Motion to Strike) | Rule 20 (Summary Judgment) |
| Use of Evidence | No affidavits allowed; based strictly on the wording of the claim. | Heavy use of evidence, documents, and witness affidavits. |
| Timing | Usually done at the very beginning of the lawsuit. | Usually done after the discovery phase is completed. |
| Purpose | To throw out claims that have no legal basis whatsoever. | To decide a case where there is no genuine issue requiring a trial. |
Frequently Asked Questions (FAQ)
Can the plaintiff fix their frivolous claim?
Yes, sometimes. If the judge strikes the claim because it was poorly drafted, they may grant the plaintiff “leave to amend.” This gives them one more chance to rewrite their Statement of Claim properly.
Do I still need to file a Statement of Defence?
Generally, filing a Notice of Motion to strike pauses the clock on your requirement to file a Statement of Defence. However, your lawyer must ensure the motion is filed within the strict legal deadlines.
What makes a lawsuit an “abuse of process”?
An abuse of process occurs when the court system is being used for an improper purpose. For example, if a plaintiff tries to sue your corporation again for the exact same issue a judge already decided years ago, it is an abuse of process.
Can small businesses represent themselves in a corporate lawsuit?
In Ontario, a corporation must generally be represented by a lawyer at the Superior Court of Justice. A corporate director cannot simply show up and argue a motion to strike without special permission from a judge, which is rarely granted in complex commercial litigation.
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