It is common ground that I must proceed solely on the basis of the pleadings without regard to any evidence, and that the test is as set out in the leading case, Hunt v. Carey Can. Inc. (1990), 1990 CanLII 90 (SCC), 49 B.C.L.R. 2d 273 (S.C.C.) at 289: … assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff’s statement of claim be struck out under Rule 19(24)(a).
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