“A similar analysis is contained in in Canadian Council of the Blind v. Davis, [2007] O.J. No. 4609; 161 A.C.W.S. (3d) 871; there Master C.U.C. MacLeod considered the appropriate approach to motions such as the one before me. I have omitted the footnotes in his reasons, where he observed:
8. For more than 100 years, pleadings in Ontario have required parties to set out the material facts to be relied upon but not the evidence by which those facts will be proven. Surprisingly this has not eliminated disputes about pleading. It is true that some kinds of allegations require more particularity than others and the line between material facts and evidence is not always a bright line. Moreover, in our regime of pleading, technicality should not get in the way of justice. That is to say that pleadings should be read generously and should not be subjected to a standard of perfection. That said, if the court permits pleadings that are overly detailed, irrelevant and unfocused, then rather than furthering resolution of the dispute through negotiation, mediation or adjudication, the pleading has the opposite effect.
9. The functions of pleading in Ontario have been said to be fourfold:
(i) To define with clarity the question in controversy between the litigants.
(ii) To give fair notice of the case which has to be met so that the opposing party may direct its evidence to the issues disclosed by them.
(iii) To assist the court in its investigation of the truth of the allegations made by the litigants.
(iv) To constitute a record of the issues involved in the action so as to prevent future litigation upon the matter adjudicated between the parties.
…
13. A pleading should not be simply a recitation of facts that may support a defence or counter claim. …. Assuming the facts exist to support the theory, those are the facts to be included in the pleading. Because the pleadings establish the boundaries of production and discovery and delimit the issues for trial, the consequences of vague and unfocused pleadings will be exaggerated costs and more difficult pre-trial and trial proceedings.
14. A reader of pleadings should be left in no doubt what the case is about and what the issues are that must be tried.
In my view, the present form of pleading does not clearly define all the actual issues that must be tried and contains extraneous elements.
In Robinson v. Medtronic, Inc., 2010 ONSC 1739 (CanLII), [2010] O.J. No. 1325; 2010 ONSC 1739 Justice Perell outlined a four step process that he followed in ruling on each paragraph of a pleading. In paragraph 17 of his reasons he detailed his approach to the existing pleading rules. The portions of his description which I found helpful in this case read as follows:
“Step 2 – Rules of Pleading
I will briefly set out the law that I will be employing to identify the problems with the pleading. I rely on the following rules or principles:
* 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: Rule 25.06 (1).
* A material fact is a fact that is necessary for a complete cause of action: Bruce v. Odhams Press Ltd., [1936] 1 K.B. 697.
* Material facts include facts that establish the constituent elements of the claim or defence: Philco Products, Limited v. Thermionics, Limited, 1940 CanLII 43 (SCC), [1940] S.C.R. 501 at p. 505.
* Material facts include any 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, a material fact is a fact that can have an effect on the determination of a party’s rights: Hammell v. The British American Oil Company Ltd., [1945] O.W.N. 743 (Master); Daryea v. Kaufman (1910), 21 O.L.R. 161; Flexlume Sign Co. v. Hough (1923), 53 O.L.R. 611; Brydon v. Brydon, [1951] O.W.N. 369, [1951] O.J. No. 77 (C.A.).
* 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. As described by Justice Riddell in Duryea v. Kaufman, (1910) 21 O.L.R. 161 (H.C.J.) at p. 168, such a plea is said to be “embarrassing;” he said: “No pleading can be said to be embarrassing if it alleges only facts which may be proved – the opposite party may be perplexed, astonished, startled, confused, troubled, annoyed, taken aback, and worried by such a pleading – but in a legal sense he cannot be “embarrassed.” But no pleading should set out a fact which would not be allowed to be proved – that is embarrassing.” A pleading that raises an issue that can have no effect upon the outcome of the action is embarrassing and may be struck out: Guaranty Trust Co. of Canada v. Public Trustee (1978), 1978 CanLII 1704 (ON SC), 20 O.R. (2d) 247 (H.C.J.); Everdale Place v. Rimmer (1975), 1975 CanLII 337 (ON SC), 8 O.R. (2d) 641 (H.C.J.); Wood Gundy Inc. v. Financial Trustco Capital Ltd. [1988] O.J. No. 275 (Master); Elder v. City of Kingston, [1953] O.W.N. 409, [1953] O.J. No. 94, (H.C.J.).
* 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 (Gen. Div.). What the prohibition against pleading evidence is designed to do is to restrain the pleading of facts that are subordinate and that merely tend to prove the truth of the substantial facts in issue: Grace v. Usalkas, [1959] O.W.N. 237 (S.C.); Phillips v. Phillips (1878), 4 Q.B.D. 127.
* Pleadings that are irrelevant, argumentative, or inserted only for colour or that constitute bare unfounded allegations should be struck out as scandalous: Senechal v. Muskoka (District Municipality), [2003] O.J. No. 885 (S.C.J.). A pleading may be struck out if it fails to comply with the formalities of a proper pleading, which require a concise and comprehensible statement of material facts and not a disorganized ambiguous mixture of facts, evidence, arguments, and law: National Trust Co. v. Furbacher, [1994] O.J. No. 2385 (Gen. Div.); Watt v. Beallor Beallor Burns Inc., 2004 CanLII 188877 (ON SC), [2004] O.J. No. 450 (S.C.J.); McCarthy Corp. PLC v. KPMG LLP, [2005] O.J. No. 3017 (S.C.J.); Chopik v. Mitsubishi Paper Mills Ltd., [2002] O.J. No. 2780 (S.C.J.); Balanyk v. University of Toronto (1999), 1999 CanLII 14918 (ON SC), 1 C.P.R. (4th) 300 (Ont. S.C.J.); Dairy Queen Canada Inc. v. Terelie Holdings (Newmarket) Inc., [2000] O.J. No. 964 (S.C.J.); Cadillac Contracting & Developments Ltd. v. Tanenbaum, [1954] O.W.N. 221 (H.C.J.), leave to appeal to C.A. refused, [1954] O.J. No. 17 (H.C.J.); Carlstrom v. Philip, [2005] O.J. No. 3390 (Master); E. & S. Carpentry Contractors Ltd. v. Fedak [1980] O.J. No. 1569 (H.C.J.).
* Under rule 25.06(8), where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred. Where a party alleges conduct akin to fraud or intentional misconduct, particulars of the specific facts that are required to ground such an action must be pleaded: Corfax Benefit Systems Ltd. v. Fiducie Desjardins Inc. (1997), 1997 CanLII 12195 (ON SC), 37 O.R. (3d) 50 at p. 59 (Gen. Div.)….”