Executive Summary: Key Legal and Evidentiary Issues

• Adequacy of the plaintiff’s pleadings in alleging material facts to support causes of action in breach of contract and negligence, versus impermissible pleading of evidence and bare assertions.
• Extent to which large portions of the statement of claim offend the rules of pleading by including evidentiary detail, opinions of third parties, and vague references (e.g., “people in the industry”) instead of concise material facts.
• Whether the defendant’s alleged statements about improper installation and willingness to compensate are admissible material facts or protected settlement communications subject to settlement privilege.
• Compliance with procedural rules on proportionality, form of action (expedited action under Rule 20A), and identification of statutory reliance (The Sale of Goods Act) in circumstances of a relatively modest monetary claim.
• Judicial discretion in using the exceptional remedy of striking pleadings—balancing the need to control abusive or defective pleadings against preserving the plaintiff’s “day in court” and avoiding limitation-prejudice.
• Determination that, although significant portions of the claim are struck, reasonable causes of action in contract and negligence remain, justifying leave to amend under strict terms and conditions, including costs exposure.

Background and facts of the flooring dispute

The case arises from a residential flooring installation at the home of the plaintiff, Eleanor Thompson, in Souris, Manitoba. The defendant, Red Kayak Flooring Company Ltd., supplied and installed the flooring. The work was completed on January 25, 2023, under what the plaintiff characterizes as a verbal contract between the parties for both product and installation. The plaintiff alleges she paid the defendant for both the materials and the installation, and later specifies that the total cost for the work and product already incurred was $28,267.57. She claims that she selected the particular flooring product based on the defendant’s consistent recommendations and that she relied on the defendant’s expertise as a vendor and installer of residential flooring. After the installation, on March 15, 2023, the plaintiff states she discovered significant gaps in the flooring, accompanied by creaking and cracking sounds, which she says disrupted her daily life and made her home environment stressful and uncomfortable. She notified the defendant the following day about the gapping, asked for a remedy, and contends that, in response, the defendant inspected the floor and made statements suggesting the installation was improper and required repair. Further inspections followed, including one arranged through the manufacturer at the defendant’s request, and another inspection organized by the plaintiff herself in March 2024. From these inspections, the plaintiff pleads three core defects: insufficient expansion space, subfloor flatness below manufacturer recommendations, and visible gapping. On the strength of these alleged defects, she asserts that the flooring is unsuitable, needs to be replaced, and that she has suffered economic loss in the form of the original installation costs and the anticipated cost of removing and replacing the flooring.

Procedural history and prior claim

The procedural backdrop is central to this decision. Before the current statement of claim, the plaintiff filed an initial claim on January 17, 2025. The defendant brought a motion to strike that initial pleading on January 30, 2025. By an order dated March 17, 2025, Associate Judge Patterson discontinued the initial claim on a without-prejudice basis by consent, and ordered the plaintiff to pay $1,000 in costs to the defendant forthwith. After that, the plaintiff issued a new statement of claim on March 6, 2025. This “second” claim—referred to in the decision simply as the Claim—seeks general and special damages comprised of the installation costs charged by the defendant and “additional reimbursement for installation and new materials” to be calculated on completion of the replacement work, plus interest and costs. Shortly after service of this Claim, the defendant brought the present motion, on May 30, 2025, to strike the Claim in whole, without leave to amend, and for costs. Both parties filed detailed motion briefs with authorities. The defendant’s motion thus challenged not the underlying merits of the flooring dispute itself, but the legal sufficiency and propriety of the plaintiff’s pleadings.

Key legal framework on pleadings and motions to strike

The decision is anchored in the rules governing pleadings and the court’s power to strike them. The court relies on Rule 25.06, which requires every pleading to contain a concise statement of the material facts on which the party relies, not the evidence to prove those facts. It also revisits authorities emphasizing that pleadings must: set out facts rather than conclusions of law, avoid irrelevant material, exclude evidence, and be concise. The court then applies Rule 25.11(1), which empowers it to strike all or part of a pleading if it may prejudice or delay a fair trial, is scandalous, frivolous or vexatious, constitutes an abuse of process, or fails to disclose a reasonable cause of action or defence. Case law from the Manitoba Court of Appeal (such as Grant v. Winnipeg Regional Health Authority) and the Supreme Court of Canada (Imperial Tobacco) reinforces that striking a claim is an exceptional remedy reserved for the clearest of cases, and that pleadings should be read generously where there is any reasonable prospect of a viable cause of action. The decision also takes into account the overarching principles of proportionality and efficient case management under Rules 1.04(1) and 1.04(1.1), emphasizing that litigation must be just, expeditious, and cost-effective, especially where the monetary stakes are relatively modest.

Contract and negligence theories, and the role of The Sale of Goods Act

Substantively, the plaintiff advances two main causes of action: breach of contract and negligence. On the contract side, Associate Judge Patterson refers to the standard elements required to plead breach of contract properly: the nature of the contract, the parties, privity, key terms, which terms were breached, and the damages that flow from the breach. These elements must be supported by material facts. Here, the plaintiff alleges a verbal contract under which the defendant supplied and installed flooring and implicitly undertook to recommend suitable flooring and install it properly. The judge flags deficiencies in the pleading, particularly paragraph 4 of the Claim, which merely states there was a verbal contract without providing material particulars: approximate timing of agreement, specific terms, or any surrounding circumstances that would allow an implied contract to be inferred. Nonetheless, the judge finds that these shortcomings can be cured by amendment and do not justify extinguishing the claim. In negligence, the plaintiff alleges that the defendant, as a specialized flooring vendor and installer, owed her a duty of care and breached that duty by recommending inappropriate flooring and installing it incorrectly. The court notes that a negligence claim must plead facts from which a duty of care, breach, and resulting damage can be inferred. While the current pleading does not clearly articulate the duty and its causal connection to loss, the judge regards the case as relatively straightforward factually and sees enough in the existing text to permit amendment rather than total striking. The decision also touches on statutory aspects, as paragraph 22 of the Claim invokes The Sale of Goods Act. Rule 25.06(4) requires that specific statutory sections relied upon be identified. The court observes that the plaintiff failed to specify any section of the Act, but treats this as an irregularity rather than a nullity. In the spirit of liberal interpretation and avoiding pointless technical defeats, the court allows the general reference to the Act to stand, expecting that any future amendment will clarify the precise statutory basis if it is to remain in issue.

Evidence versus material facts and the pruning of the claim

The heart of the decision is a paragraph-by-paragraph analysis of the Claim. The judge repeatedly stresses the distinction between material facts, which belong in pleadings, and evidence, which does not. Many paragraphs are struck wholly or in part because they recite opinions of third-party contractors, specific remedial recommendations, inspector identities, and narrative detail that the court views as evidence, not core factual allegations. For example, paragraphs 13 and 14, which recount what other contractors allegedly said about preparation of the subfloor and correct industry practice, are struck in their entirety as evidence that has not been specifically tied to the pleaded causes of action. Paragraph 9 is struck wholesale for containing only evidentiary material and no material facts. Other paragraphs, such as 5, 6, 7, 8, 10, 11, 12, 15, 16, 17 and 18, are surgically amended: key sentences establishing dates, existence of defects, alleged admissions, and cost figures are preserved, while phrases reflecting opinion, speculation, or “colour” are removed. The court explains that if the plaintiff had confined herself to stating material facts—dates, actions, alleged defects, and the basic causal chain—much of the motion and its associated cost and delay could have been avoided. It also notes that certain vague or overly broad references, including to advice from unspecified “people in the industry,” could be characterized not only as evidentiary but also as scandalous, frivolous, vexatious, or even abusive, because they are bare assertions without supporting factual foundation.

Settlement privilege and admissions within the pleadings

Certain contested passages raise the question of settlement privilege. The plaintiff pleads that, during discussions and inspections, the defendant acknowledged improper installation and expressed willingness to consider compensation if a third-party installer became involved. The defendant contends that these statements occurred in the context of settlement discussions and should be protected from disclosure as without-prejudice communications. The court reviews the test for settlement privilege, which requires: a litigious dispute (or one in contemplation), an intention that communications not be disclosed if negotiations fail, and a purpose of attempting to effect settlement. Given the limited record at the motion stage, the judge concludes that there is insufficient evidence to decide whether the alleged admissions are privileged. Following the approach taken in earlier authority, the court declines to strike these portions now and instead leaves the question of privilege to be determined by the trial judge once a fuller evidentiary record exists. Accordingly, the core factual assertions that the defendant inspected, commented on the installation, and was prepared to consider compensation are allowed to remain as material facts capable of being answered in the defence.

Proportionality, leave to amend, and control of abusive process

Having found that large parts of the Claim improperly plead evidence and contain drafting defects, the court then addresses the remedy. Under Rule 25.11(1), the statement of claim could, in theory, be struck completely if it were found to disclose no reasonable cause of action, to be scandalous or abusive, or to be fundamentally beyond salvage. However, Associate Judge Patterson concludes that this is not such a case. The underlying dispute—a residential flooring job gone wrong—is neither complex nor of enormous monetary magnitude, and the plaintiff’s essential narrative does, in broad terms, disclose potential claims in contract and negligence. The judge is also mindful of the risk of prejudice if the Claim were struck without leave to amend: given the dates of installation and discovery of problems, a fresh action may face limitation challenges. Allowing a tightly controlled amendment, coupled with costs consequences, is therefore seen as the fair and proportionate response. The court grants leave to amend on strict conditions. By a fixed date (February 23, 2026), the plaintiff must file and serve a Draft Amended Claim as an exhibit to a new affidavit. If she fails to do so, leave to amend automatically lapses and the Claim will be struck. If the defendant objects to the Draft Amended Claim, a short hearing will be scheduled to determine whether it may be filed as a formal amendment. Even if the Draft Amended Claim is substantively approved, it cannot be formally filed until acceptable arrangements are made regarding costs awarded to the defendant for this motion—which may include full payment, partial payment, or other terms such as security for costs, as approved by the court. These conditions reflect both the court’s willingness to preserve arguable claims and its insistence on disciplined, rule-compliant pleading.

Outcome, successful party, and monetary consequences

In the result, the defendant’s motion to strike succeeds in large measure: a significant portion of the plaintiff’s statement of claim is struck for non-compliance with pleading rules, though the court refuses to extinguish the action altogether. The plaintiff is granted leave to amend within a defined timeline and subject to strict conditions, including the possibility of further scrutiny before any amended claim becomes operative. The court expressly holds that the Claim, as narrowed, still discloses reasonable causes of action in breach of contract and negligence and therefore should not be struck in its entirety. On costs for this motion, the defendant is treated as the substantially successful party and is awarded its costs, with the court indicating that Tariffs A and B under the Rules should be the starting point for determining quantum. However, the exact dollar figure for those costs is not fixed in the judgment and is left either to agreement between the parties or to a brief further hearing if they cannot agree. Damages on the underlying flooring dispute—including any recovery toward the plaintiff’s claimed $28,267.57—have not yet been adjudicated and no monetary award of damages is made in this decision. Overall, Red Kayak Flooring Company Ltd. is the successful party on this motion, but the total amount ultimately payable to it for costs under this decision cannot be determined from the text of the judgment, and there is no damages award in its favour or in favour of the plaintiff at this stage.