In the recent case Patrong v Banks et al., 2015 ONSC 3078 the defendants are calling for an end to the lawsuit before any evidence has been put to the court. Justice Myers writes:

Why should a defendant be able to end a lawsuit that is just at its very beginning?  The defendants have not even denied the story told by the plaintiffs yet.  Nor have they written their statement of defence to set out their side of the story.  But lawsuits are expensive.  They are also a big intrusion into peoples’ lives.  They are stressful.  Because lawsuits are so important, stressful, expensive, and intrusive, the procedural law allows defendants to try to show that they should not be forced to go through the ordeal of being sued…

Mr. Patrong and his mother want to sue the police for compensation for injuries that they suffered due to the negligence of the police.  The story set out above has not yet been proven.  It is the Patrongs’ claim.

Rules have been developed to help the court test the validity of claims in cases like this.  … The law is supposed to change and develop.  If it is reasonably possible that the facts alleged by the plaintiffs might push the law in a novel but plausible way, then the claim should be allowed to proceed. If, however, assuming the facts to be true and reading the claim generously, it is plain and obvious that the plaintiffs cannot win, then I must dismiss the lawsuit now and save everyone the trouble of dealing with it further for no reason.  R. v. Imperial Tobacco Canada Ltd.2011 SCC 42 (CanLII)Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC)[1990] 2 S.C.R. 959.

Ultimately Justice Myers allowed the statement of claim to stand. He states that it is not plain and obvious that the case cannot succeed. He notes in passing that “one stops to wonder whether Detective Banks would have made the same decision … if Riley had been headed into Rosedale or Forest Hill rather than into Malvern.  But that is for another day. There are good reasons to find a duty of care on the facts alleged...”

Find the excellent case here: