Last Updated: , 67 days ago.
How do Ontario plaintiffs and defendants avoid pleading evidence and only plead material facts under the Rules of Civil Procedure?
In Ontario civil lawsuits, your pleading must set out a concise statement of the material facts you rely on, without including the evidence or proof you plan to use at trial, as required by Rules of Civil Procedure, R.R.O. 1990, Regulation 194, which at section 25.06(1) says pleadings contain material facts but not the evidence to prove them. Courts treat “material facts” as the facts that establish the constituent elements of your claim or defence and are capable of affecting the outcome, while “evidence” is subordinate detail that just tends to show the truth of those material facts, so plead only the events, agreements, dates, and other outcome-relevant facts, then leave proof methods, documents, witness statements, and similar trial details for disclosure and trial. If you are unsure whether a paragraph is improperly phrased as evidence (or too vague to be material), Mole Legal Services can help coordinate paralegal and property management next steps across Ontario to reduce delays and improve filing readiness, call (647) 709-5157.
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Understanding the Rule Against Pleading of Evidence
A lawsuit document, which is known as a pleading regardless of whether such is a claim or a defence, is required to contain factual allegations without containing the details about the evidence that will be used to prove the factual allegations. Simply said, the pleading document should state the facts as if the fact is true without stating how the fact will be proven true.
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The Law
The Rules of Civil Procedure, R.R.O. 1990, Regulation 194, prescribe the requirement that a pleading contain only facts without stating the details of how the facts will be proven whereas it is said:
Material Facts
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.
Interestingly, confusion can sometimes arise as to what is a statement containing a material fact and what is a statement containing evidence. This confusion is often addressed by case law such as per the following cases:
[71] Rule 25.06(1) distinguishes between the “material facts” and “the evidence by which those facts are to be proved”. The prohibition against pleading evidence is designed to restrain the pleading of facts that are “subordinate” and that “merely tend towards proving the truth of the material facts.” See Jacobson v Skurka, 2015 ONSC 1699 at para 43.
[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]
[44] A pleading should not describe the evidence that will prove a material fact; pleadings of evidence may be struck out: Sun Life Assurance Co. of Canada v. 401700 Ontario Ltd. (1991), 1991 CanLII 7050 (ON SC), 3 O.R. (3d) 684, [1991] O.J. No. 915 (Gen. Div.). The difference between pleading material facts and pleading evidence is a difference in degree and not of kind: Toronto (City) v. MFP Financial Services Ltd., [2005] O.J. No. 3214, [2005] O.T.C. 672 (Master), at para. 15. What the prohibition against pleading evidence is designed to do is to restrain the pleading of facts that are subordinate and that merely tend toward proving the truth of the material facts: Grace v. Usalkas, [1959] O.W.N. 237 (H.C.J.); Phillips v. Phillips (1878), 4 Q.B.D. 127 (C.A.). Even a pleading of an admission, which is a type of evidence, may be struck out: Davy v. Garrett (1878), 7 Ch. D. 473 (C.A.); Sun Life Assurance Co. of Canada v. 401700 Ontario Ltd., supra.
Conclusion
Within a lawsuit document, the pleading of a material facts is required; however, the pleading of evidence is forbidden. The pleading of evidence involves statements that contain details as to how a material fact will be proven true.
NOTE: A considerable amount of online searches featuring “lawyers nearby” or “top lawyer in” frequently indicate a desire for prompt and competent legal assistance rather than a particular professional designation. In Ontario, licensed paralegals are governed by the same Law Society responsible for lawyers and are permitted to represent clients in certain legal matters. Key aspects of this role include advocacy, legal analysis, and procedural expertise. Mole Legal Services provides legal representation within its licensed parameters, focusing on strategic approaches, evidence preparation, and effective advocacy to secure timely and advantageous outcomes for clients.
