
A Plea for Simple Pleadings
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May 2020 You have just been sued for breach of contract by a former business partner. As you skim through a legal document that sets out a laundry list of your alleged failures and faux pas, a few paragraphs jump out at you. Why does the document make reference to an argument over the design of your company's logo? And why is there commentary on the not-so-secret office romance between two of your employees? As far as you can tell, neither of these issues have anything to do with the contract in dispute. Puzzled, you contact your insurance company and/or lawyer and explain the situation. You are told not to worry about the language of the pleading, that allegations do not amount to evidence, and to sit tight while a defence is prepared for you. This hypothetical situation is increasingly the reality across a wide range of legal practice areas, whether in commercial litigation, personal injury, family, or employment law. Rather than a succinct statement of facts and allegations, some pleadings read more like fiction novels, replete with character development, vivid scene-setting and unexpected plot twists. In a recent class carriage motion, Justice Perell, clearly fed up with this trend, admonished the language used in the plaintiffs' claims as:
Justice Perell counted 155 out of a total of 255 paragraphs in the set of pleadings before him that violated the Rules of Pleading. But what exactly are the Rules of Pleading, and what can a party do if they feel that a pleading against them oversteps into prejudicial territory? Before exploring the answers to these questions, it is helpful to remember the role of the pleading itself. What Is a Pleading?
A pleading can be thought of as a basic blueprint for litigation. Pleadings are meant to set out 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.2 Master Haberman has helpfully characterized a pleading as: “a framework for the action, to be used for the purpose of disclosure and then, at trial. That framework is then filled in through the discovery process. Pleadings should be viewed more as the synopsis rather than the book. They should, therefore, be as precise as possible.”3 As Justice Dunphy explained in DeMasi v the Corporation of the City of Toronto, 2017 ONSC 1916: “Fancy language or legal terminology is not required [in a pleading]. Clarity is.”4 The Rules of Pleading Rule 25.06 sets out a few specific requirements that are collectively referred to as the Rules of Pleading:
Remedies for Breaches If the above rules are broken in a manner that is manifestly unfair, a motion to strike the claim under Rule 25.11 can be advanced. According to this Rule, the court can strike out or expunge all or part of a pleading on the grounds that the pleading
Even relevant portions of a pleading can be struck out if the facts pleaded “are so prejudicial that they should be struck out in spite of their relevance.”5 A relatively recent example of a defendant successfully moving under Rule 25.11 is Taylor v Canada Cartage Systems Diversified GP Inc., 2018 ONSC 617. The case featured a Statement of Claim that rambled on for 108 paragraphs over the span of 45 pages. The only tenable cause of action was wrongful dismissal against the plaintiff's former employer. However, the plaintiff's pleading included background narrative on an alleged conspiracy by the defendant to hire undercompensated and overworked drivers, the details of a WSIB claim stemming from a prior workplace injury, and lots of speculation as to the defendant's motives without any corresponding facts. Daley, R.S.J., as he then was, determined that the Statement of Claim was wholly deficient and struck out the pleading in its entirety. He relied on the seminal case of Wilson v Wilson,6 which stands for the proposition that “a pleading of fact will be struck if it cannot be the basis of a claim or a defence in the action and is designed solely for the purpose of atmosphere... If the only purpose of the pleading is to cast the opposing party in a bad light, it will be struck.”
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