Motions to Strike or Do I Have a Case?

As it is usually seen there are many misconceptions when it comes to the Small Claims Court litigation. Among others, the understanding that the Claim shall go through some stages. It is normally expected that after the filing with the Court the Plaintiff’s claim shall be served on Defendant and then, if a Defence is filed, parties should expect a Settlement Conference.


While this is true to the vast majority of cases, there are some exceptions. We are at SAV Paralegal Services using these options as a real “money saving tool” for our clients. Instead of spending time, money, and efforts on trial, in some cases we offer to dispose of the claim at the early stage.


Rule 12 of the Rules of the Small Claims Courts provides for an option for the Court to strike out a Plaintiff’s claim or a Defence if it discloses no reasonable cause of action. In other words, if there is no even air of reality that a claim can be granted, the claim shall not be allowed to proceed to a trial.


To obtain such result, interested party shall file a Motion to strike and clearly indicate the grounds for such order. It is necessary to understand that not every argument will succeed. This is because striking out a Plaintiff’s claim or a Defence is an extremely severe measure that deprives a party from the fundamental right to be heard by the Court. Therefore, Judges are reluctant in granting such motions, except in a clearest case where to allow a trial would be a waste of the Court’s time and resources. However, it is possible, and over the last month we had several files that were resolved through a Motion to strike.



In one of such cases, we represented the Defendant, a former landlord for the Plaintiff. Plaintiff’s claim was filed with the Toronto Small Claims Court several months after the tenant moved out and a residential lease agreement was terminated. Plaintiff claimed there was a breach of the contract and negligent misrepresentation as grounds to claim damages. It was alleged that Defendant, who is a former landlord, misrepresented conditions of the property and leased a unit that was flooded right after Plaintiff moved in.


Plaintiff claimed that as a result of the flood the property was not habitual, and Defendant failed to make timely repairs. As a result, Plaintiff had to move out and asked a Court to award him a compensation of all his expenses associated with moving out and also damages that were caused by such misrepresentation, i.e., the lease payments. Many witnesses anticipated to be called and a voluminous documentary evidence record was filed with the Court.


Defendant filed a Motion to strike a Plaintiff’s claim as it disclosed no reasonable cause of action. It was argued that the very nature of the claim is a rent abatement and compensation for damages caused by failure to comply with the maintenance obligations as per the Residential Tenancies Act. As such, a claim is out of the Small Claims jurisdiction and to allow this claim for a trial would be a waste of the Court’s time.


In simple words, Defendant’s position was that the Small Claims Court is not a proper forum for this claim, and it should have been filed with the Landlord and Tenant Board. The Board has an exclusive jurisdiction to hear and determine this type of claims and therefore the Court is not able to make any decision, even if the claim will be proven.



The Motion judge agreed with the Defendant and struck the Plaintiff’s claim entirely. As a result, Defendant saved a significant amount of money, time, and stress they would have spent if the matter proceed to a trial. This was a great win for our client and a costly mistake for the Plaintiff, as he was ordered to pay our client's costs.


SAV Paralegal Services has over 20 years of practice and has been loyally helping clients throughout Toronto and the GTA area. We would be happy to help you settle your case. If you have any questions, comments, concerns, would like legal advice or to book a consultation, call us now at 647-492-4929 or book an appointment with us so we can discuss how SAV Paralegal Services can help you with your matter.

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