What is the effect of the merger principle on a motion to strike?

The motions judge expressed the view that Hunt v. Carey “would have put an end to the merger principle as a way for defendants to attack a conspiracy principle whiles leaving intact the principle could be applied at trial. And indeed, many lower court decisions can be explained as manifestations of Justice Wilson’s approach that merger is a matter for the trial judge not the motions judge on a motion to strike”: see Reasons for Decision, para. 74.

The motions judge also noted that other cases have distinguished Hunt v. Carey and others have distinguished it: see Reasons for Decision paras. 76-78. He summarized the state of the merger doctrine at the pleadings stage as follows: Thus, the case law is divided and inconsistent. There are cases where courts strike a conspiracy claim as redundant and there is case law that requires the plaintiff to plead his or her special damages and then leaves the matter of merger to the trial judge. There is also case law where the conspiracy plea will survive an attack at the pleadings stage when it is not plain and obvious that the conspiracy claim would be redundant, in which case it is not necessary to provided particulars of damages that are separate and apart from the damages arising from an underlying or discrete tort. […] see Reasons for Decision, para. 79.