Not all language contained in pleadings (statements of claim or defence) are allowed. If the language included is an inflammatory attack on the integrity of a party, they should be struck, particularly if they are not relevant to the issues between the parties
The Ontario court decision Kaminsky v. Janston Financial Group, 2020 ONSC 5320 looked at striking a portion of a defence in an employment law case.
The allegations in the pleading included the following: " Carolyn’s conduct as outlined above was tantamount to wilful misconduct, and wilful neglect of duty that was neither trivial nor condoned by Janston Financial."
The Court said at paragraph 32:
[32] The Pleadings Motion is brought pursuant to r. 25.11, which allows the court to strike out or expunge all, or part, of a pleading with, or without, leave to amend, on the ground that the pleading may prejudice or delay the fair trial of the action; is scandalous, frivolous or vexatious; or is a an abuse of process.
[33] Portions of a pleading that are irrelevant and inserted merely for colour and constitute “inflammatory attacks on the integrity of a party” should be treated as scandalous and struck out under r. 25.11 (see Rare Charitable Research Reserve v. Chaplin, 2009 CarswellOnt 5530, at para. 22).
In this case, the Defence actually said that the Plaintiff was fired without cause. As well, when being questioned the Defendant had admitted the Plaintiff was not fired for cause; accordingly the above language was struck since it only related to the issue of cause.
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