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Civil Litigation - Striking Pleadings - R25.06 Plead Material Facts, Not Evidence

. Rivard v. Kingston Police

In Rivard v. Kingston Police (Div Court, 2023) the Divisional Court considered an appeal (with leave) of an interlocutory order dismissing a "motion to strike out an amended statement of claim" under R21.01(1)(b) ['no reasonable cause of action or defence'] and R25.11 ['Striking out a Pleading or Other Document'].

In these quotes, the court considers the R25.06 rule against pleading evidence:
Pleading Irrelevant Material Facts

[47] The motions judge also erred in not striking sub-paragraphs 19(ix) and (x). I agree with the submission of the Appellants that these proposed allegations pertain to a timeframe after the traffic stop, and the alleged assault and injuries sustained therein. They are therefore irrelevant, non-material facts that cannot support a cause of action against the Defendants. They cannot survive the test under rule 21.01(1)(b) because it is plain and obvious that even if accepted as true, these alleged facts could not have caused directly or indirectly the alleged assault, the accompanying injuries, or any Charter violations.

[48] After the fact conduct or misfeasance, either operational or policy based, might serve as evidence of the kind of policy and operations engaged in at the time of the accident but no more. Pleading evidence is not permitted pursuant to rule 25.06. I find that the motion judge erred in law by failing to apply the applicable rules of civil procedure to the allegations in those two sub-paragraphs.
. Abbasbayli v. Fiera Foods Company

In Abbasbayli v. Fiera Foods Company (Ont CA, 2021) the Court of Appeal considered RCP R25.06 [plead material facts, not evidence]:
[48] Rule 25.06(1) provides that pleadings are to contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which the facts are to be proved. As Perell J. noted in Jacobson v. Skurka, 2015 ONSC 1699, 125 O.R. (3d) 279, at paras. 43-44, the difference between pleading material facts and pleading evidence is a difference in degree and not of kind, and 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. As the same judge observed in Mirshahi v. Suleman, 2008 CanLII 64006 (Ont. S.C.), seeking to strike a pleading for pleading evidence can be a technical objection and pleading evidence may be closer to providing particulars, which in most cases is more helpful than harmful: at para. 21. Particulars are not evidence but “additional bits of information, or data, or detail, that flesh out the ‘material facts’”: see Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 2005 CanLII 19660 (ON CA), 256 D.L.R. (4th) 407 (Ont. C.A.), at paras. 89-90, citing Copland v. Commodore Business Machines Ltd. (1985), 1985 CanLII 2190 (ON SC), 52 O.R. (2d) 586 (S.C., Master), aff’d (1985), 52 O.R. (2d) 586 (note) (H.C.).

[49] Rule 25.11(b) provides that the court may strike out or expunge all or part of a pleading, with or without leave to amend, on the ground that the pleading is “scandalous, frivolous or vexatious”. A scandalous pleading includes those parts of a pleading that are irrelevant, argumentative or inserted for colour, and unfounded and inflammatory attacks on the integrity of a party: see George v. Harris, [2000] O.J. No. 1762 (S.C.), at para. 20. The focus in considering a challenge to a pleading under this rule is on the relevance of the pleading to a cause of action or defence. As this court recently noted in Huachangda Canada Holdings Inc. v. Solcz Group Inc., 2019 ONCA 649, 147 O.R. (3d) 644, at para. 15, “[a] fact that is relevant to a cause of action cannot be scandalous, frivolous or vexatious. On the other hand, a pleading that raises irrelevant or superfluous allegations that cannot affect the outcome of an action is scandalous, frivolous or vexatious, and should be struck out”.


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Last modified: 28-11-23
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