Last Updated: , 65 days ago.
What details should I include in my Ontario lawsuit pleading, and what should I leave out to avoid a motion to strike?
In Ontario, your claim and defence pleadings should set out concise, non-technical material facts with reasonable certainty (date, place and nature of the occurrences), not the evidence you will use to prove those facts; statements that are irrelevant, scandalous, embarrassing, or merely designed to cast another party in a bad light can be struck, and a pleading can be rejected if it includes unprovable or outcome-immaterial allegations or mixes evidence (micro-detail) into the facts required by O. Reg. 258/98, Rule 7.01(2), O. Reg. 258/98, Rule 9.02(1) and R.R.O. 1990, Reg. 194, Rule 25.06(1), as discussed in Stedfasts Inc. v. Dynacare Laboratories, 2020 ONSC 8008; if you want help drafting or tightening a pleading so it stays focused on material facts, White Owl Legal can review your draft and help you reduce strike risk, call (289) 839-3075.
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Factual Details Required Within Pleadings
The details stated within a lawsuit document, being either a claim or defence, must proper accord with court rules. Details within a lawsuit document may be improper if irrelevant, if scandalous, if embarrassingly containing details that shine a poor light on other persons, or if inherently unprovable. Improper allegations should be struck out and removed figuratively or even literally.
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The Law
Both the Rules of the Small Claims Court, O. Reg. 258/98 as well as the Rules of the Civil Procedure, R.R.O. 1990, Regulation 194, provide rules addressing the level of detail required within a proper lawsuit document. Specifically, the Rules of the Small Claims Court and the Rules of the Civil Procedure state:
7.01 (2) The following requirements apply to the claim:
1. It shall contain the following information, in concise and non-technical language:
...
ii. The nature of the claim, with reasonable certainty and detail, including the date, place and nature of the occurrences on which the claim is based.
9.02 (1) The following requirements apply to the defence:
1. It shall contain the following information:
i. The reasons why the defendant disputes the plaintiff’s claim, expressed in concise non-technical language with a reasonable amount of detail.
25.06 (1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.
As provided within the procedural rules above, the pleading documents in a lawsuit are to include material facts stated in a clear and concise manner. What is a material fact, and the restrictions upon how a material fact should be stated was well explained in Stedfasts Inc. v. Dynacare Laboratories, 2020 ONSC 8008, wherein it was stated:
[30] Material facts include facts that the party pleading is entitled to prove at trial, and at trial, anything that affects the determination of the party’s rights can be proved; accordingly, material facts includes facts that can have an effect on the determination of a party’s rights.[6] A fact that is not provable at the trial or that is incapable of affecting the outcome is immaterial and ought not to be pleaded.[7] A pleading of fact will be struck if it cannot be the basis of a claim or defence and is designed solely for the purposes of atmosphere or to cast the opposing party in a bad light.[8] As described by Riddell J. in Duryea v. Kaufman,[9] such a plea is said to be “embarrassing”.
[31] “Material” facts include facts that establish the constituent elements of the claim or defence.[10] The causes of action must be clearly identifiable from the facts pleaded and must be supported by facts that are material.[11]
[32] A pleading shall contain material facts, but it should not contain the evidence by which those facts are to be proved.[12] Pleadings of evidence may be struck out.[13] The prohibition against pleading evidence is designed to restrain the pleading of facts that are subordinate and that merely tend toward proving the truth of the material facts.[14]
As explained in the Stedfasts case, which was a case within the full Superior Court, the pleading of evidence, meaning the details explaining how material facts will be proven is considered inappropriate and unnecessary micro detail and is expressly prohibited by the Rules of the Civil Procedure. More simply said, stating material facts is proper; however, stating details about the evidence will be used to prove a material fact is improper. Interestingly, the Rules of the Small Claims Court are silent about pleading evidence, meaning lacking a prohibition against pleading evidence; however, pleading of evidence does, generally, remain improper. Additionally, in the rare circumstance where a Small Claims Court case becomes transferred to the full Superior Court, if the Small Claims Court pleading document contains pleadings of evidence, and thereby offending to the Rules of Civil Procedure, problems may arise.
Conclusion
The rules of pleading should be carefully adhered to. Pleadings, whether as a claim document or as a defence document, should contain only material facts without stooping to using a pleading document to engage in character attacks or for making prejudicial statements. Only statements that are relevant should be contained within a pleading.
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