What is the test to be applied on a rule 21 motion?

The test to be applied on a rule 21 motion is whether, accepting the facts alleged in the proposed pleading as proven unless they are patently ridiculous or incapable of proof, is it “plain and obvious” that the plaintiffs’ pleading discloses no cause of action and that the action cannot succeed. Neither the complexity of the issues, the novelty of the cause of action asserted, nor the potential for the defendants to present a strong defence is to prevent the plaintiffs from proceeding with their case. The proposed claim against the auditor defendants should only be struck “if the action is certain to fail because it contains a radical defect.” A cause of action with some chance of success should not be struck out. Hunt v. T &N plc, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 (S.C.C.), at 980. The pleading of negligence and negligent and fraudulent misrepresentation at common law

A plaintiff must establish five elements to succeed in a claim of negligent misrepresentation. • a duty of care based on a “special relationship” between the representor and the representee; • the representation is untrue, inaccurate or misleading; • the representor was negligent in making the misrepresentation; • the representee reasonably relied upon the misrepresentation; and • the reliance must have resulted in damages suffered by the representee. See Queen v. Cognos Inc. (1993), 1993 CanLII 146 (SCC), 99 D.L.R. (4th) 626 (S.C.C.) per Iacobucci J. at 643. The plaintiffs have pleaded (para. 106) the requisite elements of the claim in negligent misrepresentation.