What is the test on a rule 21.01(1)(b) motion?
Ontario, Canada
The following excerpt is from Foschia v. Conseil des Écoles Catholique de Langue Française du Centre-Est, 2009 ONCA 499 (CanLII):
The test on a rule 21.01(1)(b) motion has been defined in various ways but, in essence, it is that the action is “certain to fail”: Hunt v. Carey, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980 (“Hunt”). The following torts are alleged in the statement of claim: negligence, intentional infliction of mental suffering and misfeasance in public office. At this early stage of the proceeding, the torts alleged have, of course, not been proven. Indeed we do not even have the respondents’ statement of defence. However, in assessing whether an action is certain to fail, all the allegations contained in the plaintiff’s statement of claim are taken as proven: Hunt at p. 979.
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