What is the test for striking out or amended a pleading in an action?
Alberta, Canada
The following excerpt is from Murphy Oil Company Ltd. v. The Predator Corporation Ltd., 2002 ABQB 403 (CanLII):
Apache submits that the allegations in these two paragraphs are irrelevant and should be struck under R.129 as disclosing no defence. Under that rule: 129(1) The court may at any stage of the proceedings order to be struck out or amended any pleading in the action, on the ground that (a) it discloses no cause of action or defence, as the case may be,... The settled test under R.129 requires the court to assume the alleged facts are true, then determine whether, in law, those facts disclose a defence. It must be “plain and obvious” that the pleading has no chance of success (see, e.g., Tottrup v. Lund et al. (2000), 2000 ABCA 121 (CanLII), 255 A.R. 204 (C.A.) at para.8).
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