In Witten v. Bhardwaj, Master Joan Haberman of the Ontario Superior Court has usefully reviewed the law governing pleadings, particularly in motor vehicle negligence cases.
Counsel for the defendant had moved to strike the following paragraphs from the statement of claim:
14. The Plaintiff states that the Defendant, Paawan Bhardwaj was charged and convicted of driving while his driver’s licence was suspended.
15. The Plaintiff pleads that [sic] Defendant Paawan Bhardwaj had a pattern of reckless conduct, similar in nature of [sic] his conduct alleged in this proceeding and the Plaintiff pleads similar fact evidence, including, but not limited to, speeding on June 24, 2004, March 24, 2004, and March 7, 2006 and other such conduct as may become known during the course of this litigation. [The “sics” were in the Master’s reasons.]
Master Haberman astutely summed up the typical “shotgun” approach of the pleader in MVA cases like this:
This form of pleading is what the personal injury bar commonly refers to as “boiler-plate”. All possible causal links between a driver’s conduct and the ensuing accident are thrown into the mix, generally where there is little evidence at the time of pleading to support most or, at times, any of them. The purpose of pleading in this manner is to ensure a sufficiently broad base to permit discovery questions designed to elicit what, in fact, the defendant driver may have done or failed to do that could have caused or contributed to the accident. The pleading sets the stage for a detailed inquiry into all possible causal factors that could connect a driver’s conduct to the event.
After rejecting the plaintiff’s submission, that the motion should be dismissed because the defendant had delayed too long in bringing it, the Master turned to the principles of pleading, including the fundamental rule (contained in Rule 25.06(1)), that “a pleading should contain ‘a concise statement of the material facts on which the parties relies’, but not the evidence that will be marshalled to prove those facts”.
What is a “material fact”? The Master gleaned the following from the caselaw:
Generally, a fact is considered “material” when it constitutes a necessary element of the cause of action grounding the suit and supports the theory of the case as advanced by the party pleading it in a legally relevant manner. For example, in a tort action such as this one, the material facts are those that:
- explain who the parties are;
- identify the event or events giving rise to the claim;
- explain why each party has been sued, by listing what each has done or failed to do to cause or contribute to their damages; and
- details the damages suffered and the ensuing losses.
Master Haberman referred to the decision of R. MacKinnon J. in Williams v. Wai-Ping with respect to the general inadmissibility of similar fact evidence (and concomitant inappropriateness of pleading similar facts). Such evidence, noted Justice MacKinnon, can be confusing to the trier of fact and can also create the impression that the party against whom the allegations are made is a “bad person”. But similar fact evidence can sometimes be admissible if it can be shown to be probative of a proposition that the party pleading is entitled to advance.
Turning to the pleading in this action, the Master considered first the allegation that the defendant had been driving while under suspension. She was not satisfied the connection between driving while under suspension and negligence in the operation of the vehicle:
I am unable to see any obvious nexus between operating a vehicle while under suspension and driving it in a negligent manner on the occasion of this accident. That background fact tells me nothing about the way this defendant was actually driving or how his manner of driving could have caused or contributed to this accident. Absent that nexus, the assertion cannot be relevant and, if not relevant, it cannot be probative.
She concluded that the plaintiff was asking the court to sanction a “fishing trip” (we had always understood that the correct terminology was, “fishing expedition”…) and struck the paragraph.
With respect to the similar fact evidence of speeding, this too was struck. The Master said, “assertions regarding prior incidents of speeding could never be anything more than evidence, rather than material fact.”