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Improper Pleading of Evidence Details:
Statements Containing References to How a Fact Will Be Proven
Last Updated: July 03 2026
Question: How should I write my Ontario claim or defence in my court pleading so I include the right material facts but do not plead the evidence to prove them?
Answer: Freed Legal Services can help Ontario clients, including those in Mississauga and the GTA, understand how the rule against pleading evidence works and how to draft compliant pleading language that states what happened as material facts without adding trial-proof details, as required by Rules of Civil Procedure, R.R.O. 1990, Regulation 194, and based on decisions like Carducci v. Canada (AG), 2022 ONSC 6232; in plain terms, material facts are the constituent elements of your claim or defence, while evidence is the “how” used to prove those facts at trial, and pleadings that go beyond that can be struck or treated as embarrassing; if you want a clear, Ontario-specific review of your draft pleading or the facts you should include, call (800) 716-1897 for a consultation with a paralegal at Freed Legal Services.
Understanding the Rule Against Pleading of Evidence
A pleading document, whether such is the claim document or a defence document, is to contain allegations of fact without containing details of the evidence that will be used to prove the allegations of fact. Put simply, a pleading should state only facts in the context of the fact being true, without including details about how the fact will be proven true.
The Law
The Rules of Civil Procedure, R.R.O. 1990, Regulation 194, mandate that pleading documents contain factual statements only without containing details about how the factual statements will be proven wherein it is specifically stated:
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.
Confusion over the difference between a statement of fact and a statement of evidence sometimes arises. Clarification of the difference can be found within various case law decisions including:
[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 lawsuit documents, the pleading of material facts is proper; however, the pleading of evidence is improper. The pleading of evidence involves details about how a material fact will be proven.
NOTE: A significant amount of inquiries related to “lawyers near me” or “best lawyer in” frequently indicate a demand for prompt and proficient legal assistance rather than a specific designation. In Ontario, licensed paralegals are governed by the same Law Society that regulates lawyers and are permitted to represent clients in certain litigation matters. Advocacy, legal interpretation, and procedural expertise are fundamental to this role. Freed Legal Services provides legal representation within its licensed framework, focusing on strategic positioning, evidence preparation, and compelling advocacy designed to secure efficient and favourable resolutions for clients.
