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Federal Court - Pleadings. Brink v. Canada
In Brink v. Canada (Fed CA, 2024) the Federal Court of Appeal considered some requirements of pleadings in federal civil litigation:VII. Principles of Pleading
[51] Before considering whether the appellants’ statement of claim discloses a reasonable cause of action, it is important to first have regard to the requirements of pleading.
[52] Rule 174 of the Federal Courts Rules provides that "“[e]very pleading shall contain a concise statement of the material facts on which the party relies...”". Rule 181(1) further requires that pleadings "“contain particulars of every allegation contained therein …”".
[53] As this Court observed in Mancuso v. Canada (National Health and Welfare), 2015 FCA 227, "“[i]t is fundamental to the trial process that plaintiffs plead material facts in sufficient detail to support the claim and relief sought”". This is because pleadings play an important role in providing notice, and in defining the issues to be tried: at para. 16.
[54] Not only is the proper pleading of a statement of claim necessary for a defendant to prepare a statement of defence, the material facts will also establish the parameters of relevancy of evidence at discovery and trial: Mancuso, above at para. 17. In addition, the nature of the facts pleaded allows counsel to advise their clients, prepare their case and map a trial strategy. The Court and the opposing parties should thus not be left to speculate as to how the facts might be arranged to support various causes of action.
[55] A statement of claim must plead each constituent element of every cause of action with sufficient particularity, and each allegation must be supported by material facts. The bald assertion of conclusions does not constitute the pleading of material facts: Mancuso, above at para. 27; Canadian Olympic Association v. USA Hockey, Inc. (1997), 1997 CanLII 5256 (FC), 74 C.P.R. (3d) 348, 72 A.C.W.S. (3d) 346 (F.C.T.D.). Indeed, if the Court were to "“[allow] parties to plead bald allegations of fact or mere conclusory statements of law, the pleadings would fail to perform their role in identifying the issues”": Mancuso, above at para. 17.
[56] What will constitute a material fact in a statement of claim in a given case is to be determined in light of the causes of action asserted and the damages sought. Plaintiffs must plead—in summary form but with sufficient detail—the constituent elements of each cause of action or legal ground raised. The pleading must tell the defendant the "“who, when, where, how and what”" of the actions that allegedly give rise to its liability: Mancuso, above at para. 19.
[57] An assessment of the sufficiency of the material facts pleaded in a statement of claim is contextual and fact-driven. There is no bright line between material facts and bald allegations, nor is there a bright line between the pleading of material facts and the prohibition on the pleading of evidence. They are, rather, points on a continuum. It is the responsibility of a motions judge, "“looking at the pleadings as a whole, to ensure that the pleadings define the issues with sufficient precision to make the pre-trial and trial proceedings both manageable and fair”": Mancuso, above at para. 18.
[58] Plaintiffs can neither file inadequate pleadings and rely on defendants to request particulars, nor supplement insufficient pleadings to make them sufficient through particulars: Mancuso, above at para. 20; AstraZeneca Canada Inc. v. Novopharm Limited, 2010 FCA 112.
[59] This Court has confirmed that there are no separate rules of pleadings for Charter cases, and that the requirement of material facts applies to pleadings of Charter infringement in the same way that it does with respect to causes of action rooted in the common law. The substantive content of each Charter right—including claims under section 15 of the Charter—has been clearly defined by decisions of the Supreme Court, and plaintiffs must plead sufficient material facts to satisfy the criteria applicable to the provision in question. This is not a technicality, but is rather essential to the proper presentation of Charter issues: Mancuso, above at paras. 21, 25; MacKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357, [1989] S.C.J. No. 88 at 361-367.
[60] The normal rules of pleading similarly apply with equal force to proposed class proceedings. Indeed, the launching of a proposed class action is a serious matter, as it potentially affects the rights of many class members as well as the interests of defendants. Compliance with the requirements of the Rules is consequently not a trifling or optional matter; it is both mandatory and essential: Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184 at para. 40. . Ebert v. Canada
In Ebert v. Canada (Fed CA, 2023) the Federal Court of Appeal points out the basic nature of 'pleadings', ie. that they are proposals by a party of what they hope to prove at trial - and that they are not normally to be challenged until trial:[7] Here, the essence of the appellants’ submission is that the FMV Assumption does not, or cannot, support the Crown’s case. They assert that the Minister arrived at the FMV Assumption by inappropriately relying on statistical data from years (2001–2004) that are not at issue. They seek to have the decision of the Tax Court on the FMV Assumption set aside or, in the alternative, to have the FMV Assumption amended to provide data relevant to the taxation years in question.
[8] The Tax Court judge was alive to the appellants’ submission on the data set: Reasons at paras. 86 and 90. Moreover, the appellants’ argument goes to the merits of the appeal — whether the FMV Assumption can be proven: House v. Canada, 2011 FCA 234 at para. 30. As the Tax Court judge correctly concluded, the factual dispute about the FMV Assumption will be resolved at trial: Reasons at paras. 37-39 and 91. There, with the benefit of discovery, the parties can each adduce evidence that goes to the soundness of the Minister’s reassessments, including the methodology underlying the FMV Assumption and the data set to which it was applied. The appellants will have an opportunity to “demolish” the FMV Assumption.
[9] “Whether the evidence substantiates the pleaded facts, now or at some future date, is irrelevant to the motion to strike”: Imperial Tobacco at para. 23. In assessing the “plain and obvious” standard, it is assumed that pleaded facts can be proven. It is not for a motion judge to “usurp the function of the trial judge” by making determinations of fact or relevance on a preliminary basis: Sentinel Hill Productions (1999) Corp. v. The Queen, 2007 TCC 742 at para. 4; LBL Holdings v. Canada, 2016 FCA 17 at para. 5. . Bigeagle v. Canada
In Bigeagle v. Canada (Fed CA, 2023) the Federal Court of Appeal considers the use of extrinsic reports (eg. public commission reports) to satisfy the 'material facts' pleadings requirement:(b) Failure to Incorporate the Reports into the Pleadings
[41] In her statement of claim, Ms. BigEagle refers to various reports that have documented the circumstances of Indigenous peoples through various lenses. They include the RCMP’s 2014 Missing and Murdered Aboriginal Women: A National Operational Overview, the Aboriginal Justice Inquiry of Manitoba (1991), the Royal Commission on Aboriginal Peoples (1996), the Truth and Reconciliation Commission of Canada (2015), a Committee to End Discrimination Against Women, and Human Rights Watch reports, as well as the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. In addition, at paragraph 86f of the statement of claim, she pleads that “the Defendant’s acts and omissions against the [v]ictims and the Class include those stated by the National Inquiry and the Final Report.”
[42] Ms. BigEagle submits that the motion judge should have considered the relevant reports referred to in her pleadings, and in particular, the National Inquiry’s Final Report, as they establish material facts. She also argues that it is not necessary to explicitly state in one’s pleadings “we incorporate by reference” for the contents of reports to be considered as material facts supporting a cause of action.
[43] In her reasons, the motion judge observed that Ms. BigEagle appeared to rely on these reports as material facts upon which to base her causes of action. She noted that different evidentiary standards applied to the information contained in the reports and considered that, on occasion, reports from inquiries have not been admitted into class action proceedings. She admitted the reports, not for the truth of their content, nor as material facts, but to help put the facts into context.
[44] While the referral to reports may be used on a certification motion to help put uncontentious facts into context, to determine whether the references made in the statement of claim are accurately reflected and to assist in discharging the “some basis in fact” burden, the reports cannot be used as a means to fill in the existing gaps or the blanks in the pleadings. The argument advanced by Ms. BigEagle would require the motion judge to review thousands of pages of reports to determine what material facts support each cause of action. It would also impose upon the motion judge the burden of sorting out the material facts from the evidence, the latter of which is not admissible to establish the “reasonable cause of action” condition of the test for certification. It is clearly not the role of the motion judge to comb through the reports in order to particularize broad allegations that might support Ms. BigEagle’s causes of action.
[45] In support of her claim, Ms. BigEagle relies heavily on the issues identified by the Forensic Document Review Project (FDRP) and set out in the National Inquiry’s Final Report. The Commissioners of the National Inquiry had established the FDRP to “identify potential systemic barriers or problems and areas of weakness relating to the protection of Indigenous women, girls, and 2SLGBTQQIA individuals” and to “make recommendations about the systemic causes of [their] disappearances and deaths…and acts of violence against them” (Appeal Book at 1637). During the course of the project, the FDRP obtained and reviewed 174 files and 35 previous reports and studies on policing. Its review was not limited to the RCMP but included other provincial and municipal police forces (Appeal Book at 1635, 1642). While the FDRP identified a number of issues and unanswered questions, it clarified that it did not have the authority to make specific findings of misconduct in respect of any identifiable person or organization, to reinvestigate police investigations or to make express conclusions or recommendations about the possible civil or criminal liability of any person or organization (Appeal Book at 1639).
[46] The primary concern with relying on commission reports as the basis for material facts stems from the fact that commissions of inquiry do not have the same evidentiary standards as those applied by a court, in part because they have a different purpose. Often, the information gathered is not taken under oath and constitutes hearsay. Likewise, the process followed does not automatically provide for due process, including the right to cross-examine during fact gathering (Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), 1997 CanLII 323 (SCC), [1997] 3 S.C.R. 440; R. v. Dykstra, [2008] O.J. No. 2745 (Ont. S.C.) (QL), 2008 CanLII 34355 at para. 21; Robb v. St. Joseph’s Health Care Centre, [1998] O.J. No. 5394 (Ont. Gen. Div.) (QL) at paras. 18-19, aff’d in Robb Estate v. Canadian Red Cross Society, [2001] O.J. No. 4605 (Ont. C.A.) (QL), 2001 CanLII 24138 at paras. 209-210). Investigative and commission reports are also not intended to state a cause of action (R.G. v. Hospital for Sick Children, 2018 ONSC 7058 at para. 22).
[47] I am satisfied that the motion judge did not commit a reviewable error in not relying on the various reports as material facts to support the alleged causes of action. . Bigeagle v. Canada
In Bigeagle v. Canada (Fed CA, 2023) the Federal Court of Appeal considered the specificity of pleadings requirements in Crown liability actions, and generally:[31] I recognize that the CLPA does not require that a claimant name a specific department, ministry or bureaucratic division. However, under the CLPA, the Crown itself is immune to liability in tort and can only be held liable for the actions or omissions of its servants or agents (CLPA at s. 3; Hinse v. Canada (Attorney General), 2015 SCC 35 at para. 58). A certain level of particularity is necessary to identify the servants or agents against whom liability is alleged (Canada (Attorney General) v. Jodhan, 2012 FCA 161 at paras. 87-89). This is so in order to allow for the determination of whether the person or body named is really a servant or agent of the Crown, and to provide that person or body the opportunity to respond to the allegations directed against them (Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184 at para. 38).
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[38] I agree that the use of specific words is not necessary to crystallize a cause of action. However, Ms. BigEagle fails to plead any material facts to support her alleged causes of action. In setting out the various causes of action in the statement of claim, she begins each distinct section with: “The facts alleged supra are incorporated with respect to this claim”. This statement is found at paragraph 73b (Systemic Negligence), paragraph 78a (Misfeasance in Public Office), paragraph 78e (Negligent Police Investigation), paragraph 78l (Breach of the Canadian Charter of Rights and Freedoms), paragraph 84a (Quebec Law) and paragraph 86a (Crimes Against Humanity and War Crimes Act). When reviewing the statement of claim, it is unclear which facts she is relying on.
[39] The specific requirement to plead material facts is embodied in Rules 174, 181, 221(1)(a) and 221(2) of the Federal Courts Rules. As this Court noted in Mancuso v. Canada (National Health and Welfare), 2015 FCA 227, the “proper pleading of a statement of claim is necessary for a defendant to prepare a statement of defence. Material facts frame the discovery process and allow counsel to advise their clients, to prepare their case and to map a trial strategy” (Mancuso at para. 17). The statement of claim should tell the defendant “who, when, where, how and what gave rise to its liability” (Mancuso at para. 19). Bald assertions or statements of conclusions do not constitute material facts (John Doe at para. 23; Mancuso at para. 27; Merchant Law at para. 34).
[40] Although Ms. BigEagle has the right to choose how she frames her pleadings and is entitled to a broad reading of her statement of claim, it was incumbent upon her to plead in summary form, but with sufficient detail, the material facts supporting the various elements of each proposed cause of action and damages sought. Even if there is an overlap in the elements of some causes of action, each cause of action is distinct (Mancuso at para. 19). Ms. BigEagle cannot simply make general statements and expect the motion judge to sift through the pleadings to find the material facts necessary to support the different causes of action. . McCain Foods Limited v. J.R. Simplot Company
In McCain Foods Limited v. J.R. Simplot Company (Fed CA, 2021) the Federal Court of Appeal considered whether to grant leave to make a third party claim (under the federal rules):[25] Rules 193 and 194 of the Rules contemplate third party claims. The question of whether leave should be granted to commence a third party claim is based on the same factors as are relevant to whether a pleadings amendment should be allowed to introduce a new cause of action: Alberta v. Canada, 2018 FCA 83, 425 D.L.R. (4th) 366 at para. 20. As with the pleadings amendments in this case, the viability of the third party claim turns on whether it has a reasonable prospect of success.
[26] A third party claim must stand on its own as an independent proceeding, separate from the main action and not merely incidental to it: R. v. Thomas Fuller Construction Co. (1958) Ltd., 1979 CanLII 187 (SCC), [1980] 1 S.C.R. 695, 106 D.L.R. (3d) 193 at 709 (Thomas Fuller); 744185 Ontario Inc. v. Canada, 2020 FCA 1, 441 D.L.R. (4th) 564 at para. 32 (Air Muskoka). That said, regard may be had to the main action if it assists in determining what is in issue in the related third party claim: Canada (Attorney General) v. Gottfriedson, 2014 FCA 55, 456 N.R. 391 at para. 34 (Gottfriedson). . McCain Foods Limited v. J.R. Simplot Company
In McCain Foods Limited v. J.R. Simplot Company (Fed CA, 2021) the Federal Court of Appeal considered the test for allowing an amendment to pleadings (under the federal rules):[20] The general rule is that an amendment should be allowed at any stage of an action for the purpose of determining the real questions in controversy between the parties, provided, notably, that the allowance would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice: Canderel Ltd. v. Canada, 1993 CanLII 2990 (FCA), [1994] 1 F.C. 3, 157 N.R. 380 (C.A.); Enercorp at para. 19. However, the Prothonotary noted that the proposed amendment must have a reasonable prospect of success: Teva Canada Limited v. Gilead Sciences Inc., 2016 FCA 176, 140 C.P.R. (4th) 309 at paras. 29-32 (Teva). Another way to put this is that a proposed amendment will be refused if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 at para. 17 (Imperial Tobacco).
[21] In deciding whether an amendment has a reasonable prospect of success, its chances of success must be examined in the context of the law and the litigation process, and a realistic view must be taken: Teva at para. 30; Imperial Tobacco at para. 25.
[22] In determining whether an amendment to a defence should be allowed, it is often helpful for the Court to ask itself whether the amendment, if it were already part of the proposed pleadings, would be a plea capable of being struck out: VISX Inc. v. Nidek Co., 1996 CanLII 11534 (FCA), [1996] F.C.J. No. 1721, 72 C.P.R. (3d) 19 (F.C.A.) at para. 16. If yes, the amendment should not be allowed.
[23] Rule 174 of the Rules requires that material facts be pleaded. However, there is no bright line between material facts and bald allegations: Mancuso v. Canada (National Health and Welfare), 2015 FCA 227, 476 N.R. 219 at para. 18 (Mancuso). Looking at the pleadings as a whole, the motions judge must ensure that they define the issues with sufficient precision to make the pre-trial and trial proceedings both manageable and fair: Mancuso at para. 18. In Enercorp, this Court recently developed the idea that proceedings should be manageable and fair:[36] In deciding whether pleadings are “manageable and fair”, the Court should consider the whole of the circumstances, including the relative knowledge and means of knowledge of the parties. Rules as to sufficiency of pleadings must not be allowed to become instruments of oppression in the hands of those who have knowledge of material facts at the expense of those who seek to rely on those facts without, however, having the means of knowing those facts so as to be able to plead them with specificity.
[37] The statement at paragraph 19 of Mancuso that “The pleading must tell the defendant who, when, where, how and what gave rise to its liability” must be understood in light of the “manageable and fair” requirement. Where, as here, a party seeks to rely upon a transaction to which it is a stranger, it must be able to describe the transaction with sufficient particularity to allow the other party to identify the transaction in issue. If that criterion is met, the question of whether the pleadings are sufficient is to be assessed in light of all the circumstances including the respective means of knowledge of the parties.
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