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Civil Litigation Dicta - Pleadings - Material Facts. Rivard v. Ontario
In Rivard v. Ontario (Ont CA, 2025) the Ontario Court of Appeal considered a police/police board appeal, this from a Divisional Court interlocutory appeal regarding R21 and R25.11 pleadings motions, this in a negligence lawsuit alleging serious assault during an arrest.
Here the court considers pleading 'material facts' under R25.06 ['Rules of Pleading — Applicable to all Pleadings - Material Facts']:[43] The Chief contends that the Divisional Court erred in finding that Mr. Rivard has pled sufficient material allegations of fact to ground his claim in negligence against him. He argues that the allegations against him are bald and conclusory and that the Fresh as Amended Statement of Claim does not comply with r. 25.06(1), which requires that 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.”
[44] I stated earlier that a court’s finding that a plaintiff had pleaded a tenable cause of action is subject to review on the correctness standard. If, on the other hand, a statement of claim advances all required constituent elements of a recognized cause of action, “the assessment of whether the pleaded material facts actually support those causes of action is a question of mixed fact and law reviewable on a standard of palpable and overriding error”: Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, at para. 36, citing PMC York Properties Inc. v. Siudak, 2022 ONCA 635, 473 D.L.R. (4th) 136, at para. 29 and Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89, 482 D.L.R. (4th) 504, at para. 43.
[45] In assessing the sufficiency of the material facts alleged in support of the negligence claim against the chief, this court should therefore defer to the Divisional Court’s decision absent a palpable and overriding error of mixed law and fact. No such error has been identified, in my view.
[46] The appellants argue that the Divisional Court failed to distinguish between “material facts” and “bald conclusory statements of fact”. As held in Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121, 136 O.R. (3d) 654, at para. 15, and Meekis v. Ontario, 2021 ONCA 534, 158 O.R. (3d) 1, at para. 16, a court assessing a r. 21.01(1)(b) motion is not required to assume that bald conclusory statements of fact are true.
[47] Castrillo and Meekis do not expand on how to distinguish a material fact from a bald conclusory statement of fact. Guidance is provided in Burns v. RBC Life Insurance Company, 2020 ONCA 347, 151 O.R. (3d) 209, at para. 16: “Each defendant named in a statement of claim should be able to look at the pleading and find an answer to a simple question: What do you say I did that has caused you, the plaintiff, harm, and when did I do it?”
[48] This functional test effectively restates the principle set out in Miguna No. 2, at para. 54, wherein Blair J.A. acknowledged that some allegations in Mr. Miguna’s amended pleading were verbose and repetitive while elsewhere he stated legal conclusions, “without repeating much in the way of particulars.” He nonetheless concluded that the defendants had notice of the case they had to meet:When the claim is read as a whole, however, the defendants are provided with sufficient particulars of the various allegations, and of the legal conclusions flowing from them, to enable them to plead to the allegations. The discovery phase of the action will enable them to pinpoint the allegations – and the evidence supporting them – further. That is one of the functions of the discovery phase. . SpaceBridge Inc. v. Baylin Technologies Inc.
In SpaceBridge Inc. v. Baylin Technologies Inc. (Ont CA, 2024) the Ontario Court of Appeal considers the meaning of 'material facts':[34] ... Material facts, in the context of pleadings, are those necessary to establish the claim or defence they are advanced to support. ... . 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”. . 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 waxes usefully on the purpose and principles of 'pleadings':i) Purpose and Principles of Pleadings
[20] The purpose of pleadings has been commented upon extensively by our courts: see Yordanes v. Bank of Nova Scotia (2006), 2006 CanLII 1777 (ON SC), 78 O.R. (3d) 590 (S.C.); and National Trust Co. v. Furbacher, [1994] O.J. No. 2385 (Gen. Div.). Pleadings should serve:. To define clearly and precisely the questions in controversy between the litigants for both the parties and the court;
. To give fair notice of the precise case which is required to be met and precise remedies sought;
. To assist the court in its investigation of the truth of the allegations made; and
. To constitute a record of the issues involved in the action so as to prevent future litigation upon the matter adjudicated between the parties. [21] While considering what a pleading must contain, it is equally important to recognize what it should not or need not contain: evidence, argument, proof, investigation, reports, will-says, references to documents or witness names. A pleading is a factual construct, to be sure, but one in which the component parts remain to be supported and proven by evidence.
[22] The wording of rule 25.06(1) merits careful consideration. Evidence “by which those facts are to be proved” is not permitted in a pleading. For example, in a claim containing allegations of negligent operation of a motor vehicle, one does not attach an accident reconstruction report or cite passages from it. Nor should one include a passage from an expert report in a medical malpractice claim wherein it is alleged that a practitioner breached the standard of care in the treatment of a patient. As stated succinctly by the Court of Appeal for Ontario in Burns v. RBC Life Insurance, 2020 ONCA 347, 151 O.R. (3d) 209, at para. 16:Rule 25.06(1) requires a statement of claim to contain a concise statement of the material facts on which the party relies for its claim. Each defendant named in a statement of claim should be able to look at the pleading and find an answer to a simple question: What do you say I did that has caused you, the plaintiff, harm, and when did I do it? [23] Rule 25.06(8) is instructive for it demands full particulars in cases where fraud, misrepresentation, breach of trust, malice or intent is alleged. This is a departure from the normal practice of pleadings which requires only material facts. Undoubtedly, the threshold for “full particulars” is higher than that for “material facts”. It is worth noting, however, that even the requirement for full particulars does not displace the general pleadings rule that “evidence by which those facts are to be proved” are not to be pleaded.
ii) Material Facts versus Proven Facts
[24] Nor should “material facts” be confused with proven facts. A pleading does not serve as proof of anything. Evidence proves facts; and a pleading is no more a piece of evidence than an indictment is in a criminal proceeding. One of the standard, and indeed essential, elements of any charge to a criminal jury is to remind the members that the indictment containing the charges is not evidence.
[25] So must it be with a civil pleading.
[26] The pleading is not evidence, but it does set out what a plaintiff intends to prove. Any experienced civil litigator understands that often, by the time a matter reaches trial, the importance of the pleading has diminished. Evidence and the matters to be proven take center stage; and while the issues remain defined by the pleadings, the issues raised by those pleadings have often been narrowed. Allegations are routinely admitted or discarded as redundant, irrelevant, unproveable, or unnecessary. Trial judges often ask the parties to furnish the court with an agreed set of facts. An agreed set of facts is treated as evidence and the jury is instructed accordingly. All the same, a trial judge is hardly likely to compel the parties to serve and file amended pleadings to reflect the agreed set of facts, the allegations that have been abandoned, or the allegations that are admitted.
[27] There is good reason why no evidence is permitted in motions brought under rule 21.01(1)(b); pleadings are not about evidence. They are about setting out material facts which, if proven, would tend to prove what is alleged.
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