CIVIL PROCEDURE - Pleadings - Striking out pleadings or allegations – Grounds - Nullities and irregularities

Law360 Canada (March 23, 2023, 6:17 AM EDT) -- Appeal by the Crown from dismissal of its motion to have Corrigan’s statement of claim struck out as a nullity due to her failure to comply with provisions of the Crown Liability and Proceedings Act (CLPA). Corrigan commenced an action against the Crown which included a claim for damages. This action was commenced without first complying with the terms of s. 18(1) of the CLPA. Crown counsel wrote to Corrigan drawing to her attention the requirement that notice to the Crown was required before the issuance of the claim. Crown counsel specifically requested that Corrigan discontinue her action due to non-compliance with the provisions of the CLPA, pointing out that the action was a nullity because of that non-compliance. Corrigan did not accept Crown counsel’s position or suggestions, or act on them. She consistently advised that she was requesting that the Crown be noted in default. Corrigan wrote to Crown counsel advising that she had brought a motion for default judgment and had been instructed to serve the motion on the Crown. Crown counsel advised that a motion to strike the claim would be brought at the same time as the motion for default judgment. The motion judge found that Corrigan could not obtain default judgment for several reasons, including because she failed to comply with the mandatory notice provisions of the CLPA. He found that the Crown at all times demonstrated good faith and tried to assist Corrigan in rationalizing an improperly issued statement of claim. However, he dismissed the Crown’s motion to strike the claim as a nullity because of its delay in bringing it....
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