Are you looking into what a motion to strike is? Are you a plaintiff and the defendant has filed an application to strike out your pleadings? Of course, sometimes the plaintiff can be the one filing to strike out the response to a civil claim. A motion to strike is an American term. In Canada, we call it striking out pleadings. Either way, they are similar things.
Here is a common situation where a motion to strike could come up. Someone files a notice of civil claim and serves it on the defendant. The defendant gets the paper and is upset. They often have 29 days to respond. The defendant has to decide what to do. A few options are:
- Don’t fight it and allow the default judgment
- File a response to the notice of civil claim
- Striking out pleadings
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Application To Strike Pleadings
When you file an application to strike out pleadings, you are asking a judge to remove parts or all of the notice of civil claim. This can be very complicated to do. You will need to hire a business lawyer to help you. You are asking the judge to allow you to skip all the steps in the lawsuit process.
A good lawyer can help you. This is because they have a lot of things in their litigation toolbox. When you are dealing with large lawsuits, you don’t want to lose.
There are a few reasons why a judge might allow for pleadings to be struck. The first is that there is no legitimate claim. If someone sues you for crashing a car into their house, and you never crashed a car into their house, that is not a legitimate claim. There has to be a legitimate claim or defence to the claim.
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Motion To Strike During Lawsuits In Canada
Also, a reason to strike the pleadings is if one side is holding up the litigation’s progress. Further, another reason is if the thing being sued for is not something the courts can help with. There are lists of things that a judge can make a ruling on. The courts have limited power under the court rules.
Another reason for the striking of pleadings might be that the notice of civil claim doesn’t clearly explain what should happen. Further, there should be a clear request and ruling from the judge. For example, someone did something to you. So what? You should say that someone took money from you and you are looking for a judgment of $100,000. You must make it clear what you want the judge to award in simple terms. It should not be needlessly complex and it should be intelligible.
Business Lawyers Can Help With A Motion To Strike
A motion to strike can also be simply explained as suggesting that someone has something in their pleadings that shouldn’t be there. It’s wrong or simply doesn’t belong. You want to get rid of these things so they are no longer in the complaint. If you make an honest mistake in your pleading, you can ask a judge during the chamber hearing (applications) for the right to amend. The judges are often willing to do this. Or you might not want to amend. A business lawyer can explain this to you.
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When is a motion to strike needed?
There are numerous situations where a motion to strike may be needed. The most common of which is that you did not commit the offence. Or that the thing you have been accused of is not something that should be dealt with by the courts. If the other party is holding up the litigation process, you may also be able to use a motion to strike. An experienced lawyer will tell you whether it is possible to use this legal tool in your case.
What are pleadings?
Pleadings are filed by both parties in a court case. They outline to the judge their position as it pertains to the facts presented to date in the filing papers. Pleadings usually also contain further information that the party believes that the court should be aware of. For example, details of a legal reason why the claim should not proceed.
What does frivolous or vexatious mean?
In a legal setting, frivolous or vexatious means that a case has been bought for no good reason. It is the assertion that the case has no legal basis or merit. That has been bought merely as a way of causing the plaintiff trouble.
Author: Alistair Vigier is the CEO of ClearWay Law