Nevsun, Atlantic Lottery, and the Implications of the 2020 Supreme Court of Canada Motion to Strike Decisions on Access to Justice and the Rule of Law
Bibliographic record
Abstract
This article analyzes whether the Supreme Court of Canada has recently liberalized the ability of courts to resolve questions of law on motions to strike. It suggests that it has indeed done so and this is a positive development. It does so through an analysis of two 2020 Supreme Court of Canada decisions. Part I looks at the history of motions to strike prior to 2020 and places this against the backdrop of the principles of the rule of law and access to justice, including the spirit of the seminal Supreme Court civil procedure decision, Hryniak v Mauldin. Part II analyzes the two decisions (Nevsun and Lottery) in depth, seeking to separate the analyses regarding the appropriateness of using the motions to strike from the also notable aspects of the decisions on substantive law. Finally, Part III looks at the immediate aftermath of the decisions: doctrinally based on their procedural holdings; empirically in how they have been interpreted since being decided; and normatively in light of principles and goals of civil procedure. Throughout all of this analysis, it is posited that Nevsun and especially Atlantic Lottery have subtly expanded the invitation to courts to decide novel questions of law on motions to strike. The test to resolve such a question could be rephrased, with a judge asking “would the evidence regarding what the plaintiff and/or defendant did, as alleged in the pleadings, assist in my resolving the legal issue”?. This accords with broader trends to use procedural tools to promptly resolve actions on their merits while developing the common law. The result should not only be more access to justice in terms of prompt resolution of cases and better use of judicial resources. Rather, it should also preserve the rule of law through greater resolution of contentious legal issues. NOTE: This article is subject to minor edits and formatting changes in anticipation of its formal publication in the University of New Brunswick Law Journal volume 72, coming early Fall 2021. The pagination and citations of this preliminary version should not be relied upon when citing the article.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.004 | 0.011 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.028 | 0.023 |
| Scholarly communication | 0.014 | 0.003 |
| Open science | 0.002 | 0.003 |
| Research integrity | 0.007 | 0.009 |
| Insufficient payload (model declined to judge) | 0.005 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".