Does a motion under Rule 419(1)(a)(a) require a trial judge to consider the sufficiency of a statement of claim to establish a cause of action?
Canada (Federal), Canada
The following excerpt is from Canada v. Operation Dismantle Inc., 1983 CanLII 3008 (FCA):
Moreover, the sufficiency of the allegations of a statement of claim to establish the existence of a cause of action is, as noted above, precisely what has always been regarded as being within the discretion of the trial judge to appreciate in examining a motion under Rule 419(1)(a), and the judge here, while emphasizing the inadequacy of the allegations before him, did not feel bound to consider them as devoid of all meaning. It is no doubt true that in order to refer to Rylands v. Fletcher (1866), L.R. 1 Ex. 265, and the theory of hazardous activities, thus evoking the possibility of an accident during a test, the learned judge not only had to read between the lines of the statement of claim, but to add something that was not there. In my opinion, however, this is not a sufficient reason for finding that his overall conclusion was without foundation and that his discretion was manifestly wrongly exercised.
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