McGavin v McGavin

In the case of McGavin v McGavin, the plaintiff, self-represented, brought an action against the defendant, who was the executor of two separate estates, alleging various breaches of fiduciary duty and mismanagement. The defendant sought to strike out the indorsement and amended statement of claim on the basis that they were vague, general, and contained serious allegations without sufficient detail to permit the court to determine whether any applicable limitation period had expired.

The primary legal issue before the court was whether the indorsement and amended statement of claim were sufficient to warrant a strike-out and dismissal of the action, or if the pleadings should be struck out but not dismissed in the interests of justice. The court had to determine whether the pleadings were so deficient that they failed to disclose a viable cause of action, and if the action should be dismissed with judgment for the defendant.

The court found that the indorsement and amended statement of claim were vague and contained serious allegations against the defendant in his capacity as the executor of the estates, but they did not provide sufficient detail to enable the court to determine whether any applicable limitation period had expired. The court concluded that while the pleadings were inadequate, it was possible to identify viable causes of action. Therefore, the indorsement and pleadings were struck out, but the action was not dismissed in the interests of justice. The plaintiff was granted leave to re-file and replead.

The court ordered that the defendant was granted leave to bring the application out of time, the indorsement to the writ of summons was struck out in its entirety, the amended statement of claim was struck out in its entirety, the plaintiff was given leave to re-file and replead, and indemnity costs were ordered.