Striking Out — Ontario Employment Law
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About Striking Out
In Ontario employment litigation, "striking out" refers to a procedural tactic where a judge deletes parts of, or an entire, legal document—typically an employee's Statement of Claim—before a trial ever takes place. When an employee is fired and pursues legal action for wrongful dismissal, they will sometimes include additional allegations alongside their demand for severance pay. Common additions include claims for defamation, conspiracy, bad faith, or discrimination under the Ontario Human Rights Code.
However, under the Ontario Rules of Civil Procedure, every legal claim must be supported by "material facts"—the specific who, what, where, and when. Simply stating that an employer acted "maliciously" or "defamed" an employee is not enough. If a pleading lacks these foundational facts, contains irrelevant and scandalous venting, or asserts a claim that isn't recognized by law, the defendant employer can file an interlocutory motion to strike it out.
Employers frequently use motions to strike to narrow the scope of a lawsuit, protect individual managers from personal liability, or challenge weak claims of discrimination. If an employer succeeds in striking out portions of a claim, it reduces their financial exposure and can delay the litigation process.
Fortunately for employees, a successful motion to strike does not always mean the end of the case. In many instances, the court will strike out the defective paragraphs but grant the plaintiff "leave to amend." This provides the worker with a second chance to rewrite their lawsuit to properly comply with the rules.
Because the rules surrounding civil procedure and proper pleading are highly technical, having parts of your lawsuit struck out can be an expensive setback, often resulting in courts ordering the employee to pay a portion of the employer's legal costs. For this reason, securing guidance from a qualified Ontario employment practitioner before filing a complex claim is critical to ensuring your lawsuit is structurally sound from day one.
Frequently Asked Questions
What does it mean if my former employer files a motion to strike out my claim?
It means the employer is asking the court to dismiss parts or all of your lawsuit early in the process. They are usually arguing that your Statement of Claim is legally flawed, misses crucial facts, or includes irrelevant, scandalous information.
Why would a judge agree to strike out part of a wrongful dismissal lawsuit?
A judge will strike out claims if they fail to disclose a "reasonable cause of action" under the Ontario Rules of Civil Procedure. This often happens if an employee alleges serious wrongdoing, like fraud or conspiracy, but fails to provide the specific details required to support those accusations legally.
If parts of my lawsuit are struck out, is my entire case over?
Not necessarily. Judges frequently strike out the problematic sections but grant the plaintiff "leave to amend." This gives you permission to rewrite the document and fix the errors, provided the underlying claim is legally possible.
Can an employer strike out my human rights claim in a civil lawsuit?
Yes. While you can link a wrongful dismissal to an Ontario Human Rights Code violation, you must clearly outline the material facts proving that your termination was connected to a protected ground (like age or disability). If those facts are missing, the employer can move to strike that specific portion of your claim.
When should I consult an employment lawyer if I am hit with a motion to strike?
You should seek professional legal representation immediately. Defending against a motion to strike involves complex procedural arguments, and losing can result in you being ordered to pay the employer's legal costs for the motion.
Common Scenarios
- An employee sues for wrongful dismissal and adds a claim for "mental distress," but fails to describe any specific bad-faith conduct in the manner of dismissal, prompting the employer to move to strike the damages claim.
- A self-represented worker files a lengthy lawsuit filled with emotional venting and historical grievances that have no legal bearing on their termination, leading the employer's counsel to successfully strike the "scandalous" paragraphs.
- A terminated manager sues the company for severance and additionally sues the HR director personally for "conspiracy" without providing evidence of unlawful collusion, causing the HR director to apply to strike the claim against them.
What You Should Know
- Stick strictly to the "material facts" (who, what, when, where) when drafting a claim, leaving out emotional commentary or irrelevant workplace history.
- Be aware that adding complex, aggressive claims like defamation or conspiracy to a standard severance dispute will likely invite expensive motions to strike if they aren't meticulously detailed.
- If you receive a motion to strike, you may be able to negotiate an agreement with the employer's lawyer to voluntarily amend your pleadings before spending thousands of dollars arguing in court.
- To avoid the delays and cost consequences associated with strike motions, always have an experienced employment lawyer draft or review your Statement of Claim before filing it with the court.
Featured Cases
Maule v. IBM Canada Ltd
2024 ONSC 2241 (CanLII) · 2024-01-16A wrongful dismissal case involving a motion to strike out pleadings. The court addressed procedural issues regarding the sufficiency of the pleadings in an employment dispute.
Singh v. RBC Insurance Agency, Ltd.
2020 ONSC 267 (CanLII) · 2020-02-04Singh v. RBC: Striking Pleadings in Wrongful Dismissal
This is an interlocutory motion regarding the sufficiency of pleadings in an employment law dispute. The defendants sought to strike paragraphs alleging wrongful dismissal, common employer liability, malicious investigation, and Human Rights Code violations for failing to disclose a reasonable cause of action or lacking sufficient particulars.
Armstrong v WSIB
2019 ONSC 6233 (CanLII) · 2019-10-31Wrongful Dismissal: Pleadings and Striking Out
This is an interlocutory proceeding concerning a wrongful dismissal claim where the court addressed issues regarding pleadings and the striking out of claims.
Taylor v. Canada Cartage Systems Diversified GP Inc.
2018 ONSC 617 (CanLII) · 2018-01-26Wrongful Dismissal: Pleadings Struck Out with Leave to Amend
This is an interlocutory proceeding concerning a motion to strike a statement of claim in a wrongful dismissal action. The defendant argued that the plaintiff's pleadings were deficient, containing irrelevant, immaterial, and scandalous allegations, and included extrinsic evidence rather than concise material facts. The court struck out the statement of claim with leave to amend to address these procedural deficiencies.
Phillips v. Ontario Racquet Club
2012 ONSC 6679 (CanLII) · 2012-11-29Wrongful Dismissal: Striking Out Pleadings for Defamation
This is an interlocutory proceeding concerning a motion to strike portions of the plaintiff's statement of claim in a wrongful dismissal action. The defendants argued that the pleadings for wrongful dismissal, defamation, and conspiracy failed to comply with Ontario Rules of Civil Procedure by lacking material facts and proper particulars. The court addressed whether these claims should be struck out or if the plaintiff should be granted leave to amend.
Jubb v. Bullion Management Group
2012 ONSC 6547 (CanLII) · 2012-11-20Wrongful Dismissal: Striking Out Pleadings Motion
This is an interlocutory proceeding in a wrongful dismissal case where the court addressed a motion to strike out pleadings. The case involves employment law issues regarding the validity of the plaintiff's claim for wrongful dismissal.
Jiwan v. Money Express
2012 ONSC 909 (CanLII) · 2012-04-13This is an interlocutory proceeding in a wrongful dismissal case where the court addressed a motion to strike out pleadings. The dispute centers on the validity of the employee's claim for wrongful dismissal against the employer.
Dynamex Canada Corp. v. De Sousa
2009 CanLII 43187 (ON SC) · 2009-08-17Employment Contract: Restrictive Covenants & Non-Party Liability
This is an interlocutory proceeding concerning a dispute over an employment contract, specifically focusing on restrictive covenants and non-party liability. The court addressed procedural matters regarding counterclaims and the striking out of pleadings.
O’Brien v. KMK Consultants Limited
2008 CanLII 58615 (ON SC) · 2008-11-14Wrongful Dismissal: Motion to Strike Pleadings
This is an interlocutory proceeding in a wrongful dismissal case involving a motion to strike pleadings. The court is addressing procedural issues regarding the sufficiency of the pleadings in an employment law dispute.
Davis v. Honda of Canada Mfg.
2008 CanLII 48641 (ON SC) · 2008-09-26This is a procedural ruling concerning a motion to strike pleadings for disclosing no reasonable cause of action in an employment-related matter.
Potter v. Bank of Canada
2006 CanLII 5458 (ON SC) · 2006-02-22A procedural ruling in a case involving pension rights, where the court addressed a motion to strike out pleadings.
Caras v. IBM Canada Ltd. et al
2004 CanLII 2566 (ON SC) · 2004-07-14This is a procedural ruling concerning a motion to strike pleadings in an employment law dispute. The specific nature of the underlying employment claim is not detailed in the provided keywords.
Montgomery v. Scholl-Plough Canada Inc. (H.C.J.)
1989 CanLII 4045 (ON SC) · 1989-10-18This is a procedural ruling on a motion to strike portions of the plaintiff's amended statement of claim in an employment dispute. The court addressed whether Rule 21.01(1)(b) of the Ontario Rules of Civil Procedure permits striking out less than an entire pleading and applied the standard for striking out claims in the context of mixed tort and contract actions involving bad faith and damages.
Anderson v. Du Pont of Canada Ltd.
1975 CanLII 378 (ON SC) · 1975-07-31Wrongful Dismissal: Counterclaim Struck Out for Lack of Connection
This is a procedural ruling concerning the permissibility of counterclaims in a wrongful dismissal action. The court addressed whether a counterclaim seeking payment under a guarantee and promissory note from 1960 was sufficiently connected to the plaintiff's wrongful dismissal cause of action arising in 1974. The court struck out the counterclaim, finding an insufficient connection between the two matters.