What Is the Difference Between Pleading Facts and Pleading Evidence?

A Statement Within a Lawsuit Document Should Contain Only Allegations of Fact Rather Than Including Details About How the Fact Will Be Proven. The Former Is Pleading of Fact. The Latter Is Pleading of Evidence.

Understanding the Rule Against Pleading of Evidence Involves Statements About How An Alleged Fact Will Be Proven

Lawsuit Document 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.  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, 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.

Interestingly, confusion can sometimes arise as to what is a statement containing a material fact and what is a statement containing evidence.  This confusion is often addressed by case law such as per the following cases:


[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.

Summary Comment

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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