Novel claims (i.e., claims that are unprecedented or innovative) present a significant challenge for courts in the context of interlocutory proceedings such as motions to strike or amend pleadings, or to certify class proceedings. On the one hand, our common law system of justice prides itself on evolving through the incremental application of established legal principles to new fact patterns. On the other hand, “novelty” is often times an indicator of a meritless claim, because neither precedent nor principle can justify the plaintiff’s claim for relief. This poses a challenge for courts, as delineating when a novel claim is viable or meritless can be difficult, particularly where no evidentiary record is available to be considered.
Last year, the Supreme Court of Canada provided welcome guidance on how courts should approach motions to strike pleadings of novel causes of action. In Atlantic Lottery Corp. Inc. v. Babstock,[i] the Supreme Court struck all of the plaintiffs’ claims in a proposed class action arising from allegations of deceptive practices in the operation of video lottery terminal games. Notably, the Court held that a plaintiff’s claim will not survive a motion to strike simply because it is novel.
In keeping with the Supreme Court’s guidance, recent jurisprudence suggests that Canadian courts are increasingly willing to entertain requests by class action defendants to dismiss—at an early stage of the proceedings—legally untenable claims advanced against them.
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