CIVIL PROCEDURE - Striking out pleadings or allegations – Failure to disclose a cause of action or defence

Law360 Canada (March 17, 2023, 6:21 AM EDT) -- Appeal by Benbella from the dismissal of his application for an injunction on the grounds that the motion judge erred in granting the motion to strike his application. Benbella was a dental school graduate. He attempted the certification process administered by the respondent, the National Dental Examining Board of Canada, to qualify for admission to the profession of dentistry in Canada. He passed the Objective Structured Clinical Examination but failed the written exam twice. He requested to have his written exams manually remarked as he was entitled to under the respondent’s bylaws. They were, but the results did not change. Benbella sought to appeal the results of his written exam, claiming he was entitled to a Special Appeal before the respondent’s Appeal Committee. The respondent denied Benbella’s request for a Special Appeal. It advised him that the only appeal available to him was the manual rescoring which had already been done for both of his written exams. Benbella brought an application seeking mandatory interlocutory and permanent injunctions requiring the respondent to hear his Special Appeal, provide him with the procedural rules, and provide materials including his written exams and score key to assist him with preparing for the appeal. The respondent filed a motion to strike the application, which was granted. The motion judge determined that Benbella’s application hinged on his ability to establish that he had a right to a Special Appeal. However, reading the bylaws, it was clear that no such right existed. The motion judge concluded that his application had no reasonable cause of action and was struck in its entirety. Benbella submitted the motion judge erred in holding that his application was dependant on the existence of a substantive right to appeal, erred in finding that a Special Appeal was a procedural right, and erred in her interpretation of the bylaws to find that a Special Appeal was not available to him....
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