LSUC brought a motion under Rule 21.01(2)(b) to strike the statement of claim for disclosing no reasonable cause of action. The court noted that a defendant should ordinarily move to strike a claim before filing a statement of defence, but a defendant could bring such a motion without leave even after delivering a defence if it was obvious from the statement of defence that the defendant took issue with the sufficiency of the plaintiff’s claim. Because LSUC’s defence pleaded the very deficiencies relied on in the motion to strike, the court held that leave was not necessary. It also indicated that the motion judge would have, and should have, granted leave if requested.
Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.