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Litigants are often confronted with pleadings that appear to have no real prospect of success. At first glance, a motion to strike can seem like the perfect procedural tool to dispose of a meritless claim quickly and cheaply.
Ontario courts, however, have repeatedly emphasized that a motion to strike is a narrow, exceptional remedy, that should be reserved for pleadings where there is no dispute as to the facts or the factual dispute is irrelevant to resolving the ultimate question in the litigation. Where the dispute turns on facts or questions requiring an evidentiary record, litigants are better directed to using other procedural tools such as summary judgment, or a stay of proceedings—not motions to strike.
Ontario's Rules of Civil Procedure provide two distinct pathways for litigators to strike pleadings, each aimed at removing unnecessary litigation from the court.
Rule 21.01(1)(b): No reasonable cause of action or defence
Facts assumed to be true
Rule 21.01(1)(b) permits the court to strike pleadings that disclose "no reasonable cause of action or defence."1 This is a legal sufficiency test directed to strike meritless claims to avoid wasting judicial time and resources, and asks whether, assuming the pleaded facts are true, there is a reasonable prospect of success in law.2
Importantly, a motion to strike under this subrule is considered without evidence, meaning the moving party cannot rely on an evidentiary record when moving to strike.3 This is because rule 21.01(1)(b) is reserved for situations where the litigant has no reasonable prospect of succeeding on his or her claims, so much so that no fact introduced would change the determination.4 For that reason, courts will simply assume that the facts as pleaded are true.
Evidence allowed to prove a legal issue
While evidence introduced to prove a fact will not be allowed, even with leave from the court, evidence may be introduced to prove a legal issue. In R v Imperial Tobacco Canada, the Supreme Court of Canada distinguished between two types of evidence on a motion to strike, noting: "a distinction lies between evidence that is introduced to prove a point of fact and evidence of legislative intent that is provided to assist the court in discerning the proper interpretation of a statute. The former is not relevant on an application to strike; the latter may be."
Still, even if the evidence goes to a legal issue, the party seeking leave to introduce evidence must show:
(a) the evidence is essential to the determination of the legal question at hand and cannot be addressed solely through arguments on the pleadings;
(b) that admitting evidence will not cause unfair delay or prejudice to the opposing party; and
(c) that determination of the issue is not plain and obvious based on the pleadings alone.
In summary, Rule 21.01(1)(b) is a narrowly tailored, pleadings‑based screening tool that targets only claims or defences with no reasonable prospect of success in law. By presuming the pleaded facts to be true and limiting the use of evidence, the rule preserves judicial efficiency and procedural fairness, allowing the courts to triage claims that are clearly untenable without having to conduct a full, fact-driven adjudication.
Rule 25.11: Scandalous, frivolous, vexatious, abuse or process proceedings
Rule 25.11, on the other hand, is reserved for scenarios where pleadings are scandalous, frivolous, vexatious, or an abuse of process.5 This Rule provides courts with considerable discretion to strike out or expunge any part or all of a pleading or other document, with or without leave to amend, at any stage of the proceedings.
Whereas rule 21.01(1)(b) is aimed at preserving judicial efficiency, Rule 25.11 is aimed at judicial integrity. By removing pleadings that are improper, unnecessarily or harmful, this Rule ensures the judicial process is reserved for genuine legal disputes.
Relevant claims will be allowed
In Abbasbayli v Fiera Foods Company, the Ontario Court of Appeal emphasized that the guiding principle determining whether a pleading is frivolous or vexatious is relevance. Van Rensburg, J.A., wrote at para 49:
Rule 25.11(b) provides that the court may strike out or expunge all or part of a pleading, with or without leave to amend, on the ground that the pleading is "scandalous, frivolous or vexatious". A scandalous pleading includes those parts of a pleading that are irrelevant, argumentative or inserted for colour, and unfounded and inflammatory attacks on the integrity of a party: see George v. Harris, [2000] O.J. No. 1762 (Ont. S.C.J.), at para. 20. The focus in considering a challenge to a pleading under this rule is on the relevance of the pleading to a cause of action or defence. As this court recently noted in Huachangda Canada Holdings Inc. v. Solcz Group Inc., 2019 ONCA 649, 147 O.R. (3d) 644 (Ont. C.A.), at para. 15, "[a] fact that is relevant to a cause of action cannot be scandalous, frivolous or vexatious. On the other hand, a pleading that raises irrelevant or superfluous allegations that cannot affect the outcome of an action is scandalous, frivolous or vexatious, and should be struck out".6
Because evidence is relevant if it has some tendency to make the proposition for which it is advanced more likely, and because anything relevance is necessarily not scandalous, frivolous, or vexatious, striking a pleading under Rule 25.11 is an incredibly high bar to meet and can only be met in the clearest of cases.7
Rule 25.11 should be used to strike litigated claims
One such instance where Rule 25.11 is useful is when a party is attempting to relitigate a claim. This is what courts consider to be "vexatious" litigation or an abuse of the judicial process.
In Brown v Lee, for example, the Ontario Superior Court found that a civil suit brought against the criminal defendant's lawyer was an attempt to relitigate the underlying criminal conviction and, thus, amounted to an abuse of process.8 In that case, the criminal defendant, Brown, was found guilty of mischief and forcible confinement with respect to a domestic dispute with his former common-law spouse. Brown had been represented by his lawyer, Lee, at trial but not during his sentencing. The defendant later appealed his conviction; however, appeal was denied. Lee then brought a motion for leave to appeal to the Court of Appeal, which was also denied. Finally, Brown brought a civil action against Lee, which Lee moved to strike.9
The court granted the motion and found that this was nothing more than an attempt by Brown to relitigate his criminal conviction. In order to succeed in a case against Lee, Brown would have to show that but for Lee's ineffective assistance, he would not have been convicted. Accordingly, this amounted to an abuse of process and warranted the motion to strike.10
Brown represents the precise scenario that Rule 25.11 was designed to help courts avoid. The court does not need to engage in a fact-finding mission in order to dispose of the legal question, the pleadings are irrelevant because the court has already engaged in a fact-finding mission, and rehearing the claim would amount to a misuse of the judicial process. Allowing a case like this to proceed would simply undermine the goals and purpose of our justice system.
Rule 25.11 can be used to strike inflammatory attacks on a party
A less clear-cut use for a Rule 25.11 motion to strike is for pleadings demonstrating a complete absence of material fact. In these circumstances, courts will strike pleadings that contain bare allegations, or unfounded and inflammatory attacks on a party's integrity, particularly when the allegation is of intentional or malicious conduct.11
Understandably, this use of Rule 25.11 is prone to misinterpretation, with parties arguing that any inflammatory allegation constitutes grounds to strike. However, litigants should remember that the true inquiry is not whether the allegations are inflammatory but whether the allegations are only inflammatory.12 In other words, the key issue, again, is relevance.
The 2021 Ontario Superior Court decision, Manese v Kissinger, is illustrative of this distinction. In that case, the plaintiff, Manese, had engaged, on behalf of his corporation, the defendant, Kissinger, to carry out a workplace harassment investigation.13 The plaintiff alleged that the defendant breached her standard of care by including libelous comments about the plaintiff in her report.
The defendant then responded with a Statement of Defence, in which she pled the defence of justification, and included, among other things, a statement that the plaintiff had threatened an employee by indicating he would "take [the employee] down by breaking [that employee] financially."14 The plaintiff moved, pursuant to Rule 25.11, to strike the statement.
The court denied the motion to strike and undertook a relevance analysis. The court highlighted that the focus is on whether the allegation of the impugned paragraph is relevant to a cause of action or defence. Although a statement that the plaintiff wishes to take an employee down financially could be construed as inflammatory, it is also relevant to determining whether the defendant can invoke the defence of justification against the accusation of libel. Therefore, this is not an instance where Rule 25.11 ought to be used.15
Overall, both rule 21.01(1)(b) and Rule 25.11 provide mechanisms for courts to dispose of proceedings or pleadings that are inappropriate for adjudication on the merits. However, litigants should be aware of their limited applicability and familiarize themselves with cases where motions to strike have and have not been successful.
Footnotes
1. Rules of Civil Procedure, RRO 1990, Reg 194, R. 21.01(1)(b).
2. Walsh v Attorney General of Canada, 2025 ONSC 3267 at para 14.
3. Comish v Sears Canada Inc., 2009 CanLII 65820 at para 9.
4. Hunt v Carey Canada Inc., 1990 CanLII 90 (SCC) at 980; Rivard v Ontario, 2025 ONCA 100 at para 22.
5. Rules of Civil Procedure, RRO 1990, Reg 194, R. 25.11.
6. Abbasbayli v Fiera Foods Company, 2021 ONCA 95 at para 49.
7. Air Canada v WestJet Airlines Ltd., 2004 CanLII 66339 at para 6 citing Wernikowski v Kirkland, Murphy & Ain, 1999 CanLII 3822 at para 12.
8. Brown v Lee, 2012 ONSC 4154 at para 9.
9. Brown v Lee, 2012 ONSC 4154 at paras 1-3.
10. Brown v Lee, 2012 ONSC 4154 at para 16.
11. Gaji v 43 Division Police Service et al., 2014 ONSC 2042 at para 6.
12. Manese v Kissinger, 2021 ONSC 5335 at paras 11-12.
13. Manese v Kissinger, 2021 ONSC 5335 at para 4.
14. Manese v Kissinger, 2021 ONSC 5335 at para 7.
15. Manese v Kissinger, 2021 ONSC 5335 at para 26.
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