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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: What should I include in my Ontario civil claim or defence so I don’t plead evidence instead of material facts?
Answer: In Ontario civil pleadings, you should include only a concise statement of the material facts that support your claim or defence, not the evidence or details about how you will prove each fact, as required by Rules of Civil Procedure, R.R.O. 1990, Regulation 194 at section 25.06(1) (Rules of Civil Procedure, R.R.O. 1990, Regulation 194, section 25.06(1). Courts describe this as a limit on pleading subordinate facts that merely tend to prove the truth of material facts, not proof steps, and pleadings of evidence may be struck out, including under Carducci v. Canada (AG) 2022 ONSC 6232 and Stedfasts v. Dynacare 2020 ONSC 8008. If you want help framing your allegations as material facts (and avoiding an evidence-heavy pleading), DK Legal Practice can assist paralegal guidance for Ontario matters, call (416) 906-6663 to discuss your next draft.
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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, 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. 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 inquiries related to “lawyers in my vicinity” or “top lawyer in” commonly indicate a desire for prompt and proficient legal assistance rather than a particular designation. In Ontario, licensed paralegals are governed by the same Law Society that regulates lawyers and are permitted to represent clients in specified litigation matters. Skills in advocacy, legal reasoning, and procedural expertise are fundamental to this function. DK Legal Practice provides legal representation within its licensed parameters, focusing on strategic positioning, evidential groundwork, and persuasive advocacy aimed at securing efficient and advantageous outcomes for clients.