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Improper Pleading of Evidence Details:
Statements Containing References to How a Fact Will Be Proven
Last Updated: June 11 2026
Question: What does “don’t plead evidence” mean in Ontario civil court pleadings?
Answer: In Ontario, pleadings must set out a concise statement of the material facts you rely on, not the evidence you’ll use to prove those facts, and courts can strike allegations that are merely subordinate proof or “atmosphere” rather than facts that establish the claim or defence under Rules of Civil Procedure, R.R.O. 1990, Regulation 194, s. 25.06(1). DK Legal Practice is a Paralegal service helping consumers across Ontario draft and refine claims and defences that stay focused on provable material facts and reduce procedural risk, so call (416) 906-6663 to discuss your matter.
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. 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. 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.
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 quantity of queries related to “lawyers near me” or “best lawyer in” frequently indicate a pressing requirement for competent legal assistance rather than a defined professional designation. In Ontario, “licensed paralegals” are governed by the same Law Society that manages lawyers and are permitted to advocate for clients in specified litigation scenarios. Core functions of this role include advocacy, legal assessment, and procedural expertise. DK Legal Practice provides legal representation within its licensed scope, focusing on strategic positioning, evidentiary preparation, and compelling advocacy designed to secure efficient and advantageous outcomes for clients.