Authors
Partner, Disputes, Vancouver
Associate, Disputes, Vancouver
Key Takeaways
- The British Columbia Court of Appeal upholds the striking of a deficiently pleaded breach of contract claim, emphasizing that pleadings matter.
- B.C.’s highest court sends a clear message: inadequately pleaded causes of action will not be certified and may be struck.
- For class action defendants, the ruling is a welcome reminder that applying to strike deficient pleadings is a key tool in class action defence.
A recent decision of the British Columbia Court of Appeal delivers a clear reminder: pleadings matter.
In Hvitved v. Home Depot of Canada Inc., 2026 BCCA 39, the Court dismissed both the appeal and cross-appeal of the B.C. Supreme Court’s certification order. In doing so, the Court of Appeal underscored a basic but foundational point — the success of a claim begins with properly pleaded facts. For class action defendants, the message is clear: applying to strike deficient pleadings remains a viable tool in the class action defence toolkit.
Background
The case arose after Home Depot shared around 6.85 million “hashed” customer email addresses with an online platform to track the success of its online advertising campaigns.
The plaintiff brought a proposed class action against the company for infringing its customers’ privacy, alleging breaches of privacy statutes, intrusion upon seclusion, breach of contract, and unjust enrichment.
Home Depot opposed certification and applied to strike the claims.[1]
In January 2025, the B.C. Supreme Court certified the plaintiff’s statutory breach of privacy claims, but struck the balance of the claims for failing to disclose a cause of action.[2] For Osler’s commentary on this decision, see our 2025 Privacy Jurisprudence Review.
The plaintiff appealed the judge’s decision not to certify his breach of contract claim, and Home Depot cross-appealed the judge’s decision to certify the breach of privacy claims.
Decision
Like the court below, the Court of Appeal found the plaintiff’s breach of contract claim failed to disclose a cause of action, as it was missing key details about the formation, scope, and terms of the alleged contract. The Court of Appeal also held that the plaintiff had claimed an implied term without any material facts in support.
Importantly, the Court emphasized that “pleadings matter”.[3] The Court reiterated its emphasis from a previous decision, Mercantile, on the foundational role pleadings play: they guide the litigation process by defining the factual and legal issues requiring determination.[4]
Conclusion
B.C.’s highest court sends a clear message: inadequately pleaded causes of action will not be certified and may be struck.
For class action defendants, the ruling is a welcome reminder that an application to strike can defeat claims falling below the Mercantile standard — but timing is key. In most cases, these applications are best brought at the certification stage. Applying too early may put the plaintiff on notice to amend their pleadings.[5]
Beyond the procedural lesson, the case reflects a growing tension in our digital age. As companies increasingly share and analyze customer data across platforms, privacy breaches have become fertile ground for class actions. The Court’s insistence on rigorous pleadings signals that vague allegations will not make the cut.
[1] Home Depot’s application to strike the pleadings under Rule 9-5 of B.C.’s Supreme Court Civil Rules was heard concurrently with the plaintiff’s certification application.
[2] Hvited v. Home Depot of Canada Inc., 2025 BCSC 18.
[3] Hvitved v. Home Depot of Canada Inc., at para. 60.
[4] Mercantile Office Systems Private Limited v. Worldwide Warranty Life Services Inc., 2021 BCCA 362 at paras. 21-23.
[5] In this case, the plaintiff only sought leave to amend at the hearing before the Court of Appeal. As he did not raise this issue at Supreme Court or in his factum, the Court of Appeal did not engage with his request: at paras. 61-62.
