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Improper Pleading of Evidence Details:
Statements Containing References to How a Fact Will Be Proven
Last Updated: August 22 2026
Question: How should a lawsuit pleading in Ontario separate material facts from evidence to avoid a pleading being struck?
Answer: In Ontario, your claim or defence pleading should list only the material facts in a concise way, and not the evidence or details about how you will prove those facts at trial, because Rules of Civil Procedure, R.R.O. 1990, Regulation 194, R.R.O. 1990, Reg. 194 at s. 25.06(1) requires “material facts … but not the evidence” by which the facts will be proved. Courts explain that evidence is subordinate or merely tends toward proving the material facts, while material facts are the constituent elements that can affect the determination of your rights, and pleadings of evidence may be struck out, as discussed in cases like Carducci v. Canada (AG), 2022 ONSC 6232, and Stedfasts v. Dynacare, 2020 ONSC 8008. For help drafting or revising pleadings that stay within the rule against pleading evidence, contact Freed Legal Services paralegal team at (800) 716-1897 to reduce the risk of delay and motions over improper pleadings across Ontario.
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Understanding the Rule Against Pleading of Evidence
A lawsuit document, which is known as a pleading regardless of whether such is a claim or a defence, is required to contain factual allegations without containing the details about the evidence that will be used to prove the factual allegations. Simply said, the pleading document should state the facts as if the fact is true without stating how the fact will be proven true.
The Law
The Rules of Civil Procedure, R.R.O. 1990, Regulation 194, prescribe the requirement that a pleading contain only facts without stating the details of how the facts will be proven whereas it is said:
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 a lawsuit document, the pleading of a material facts is required; however, the pleading of evidence is forbidden. The pleading of evidence involves statements that contain details as to how a material fact will be proven true.
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