Drafting Proper Pleadings
Within Small Claims Court Proceedings
Page last modified: October 06 2022
Initiating the Small Claims Court process commences with the Plaintiff's Claim document. This document, classified as a pleading, must distinctly and succinctly outline the narrative of the alleged wrongdoing by the defendant. The narrative should incorporate sufficient details to demonstrate that a valid legal basis for the lawsuit exists.
Understanding theRequirement of Adequate Fact Particulars, Among Other Things, Within Small Claims Court Pleadings
An Affidavit is a document that is sworn or affirmed under oath, demanding that the statements it contains are truthful. If an Affidavit is sworn or affirmed without authenticating its content, it remains incomplete.
In legal proceedings, the primary document initiating the process is known as a Statement of Claim. Together with any subsequent Defence document, these are collectively termed as pleading documents. Whether it is a Plaintiff’s Claim, Statement of Claim, or the Defence, all pleading documents must be carefully crafted to adhere to the specified Rules that govern the procedural requirements of the court. The objective of this webpage is to provide answers to commonly asked questions about the Rules related to the accurate preparation of a Plaintiff’s Claim in the Small Claims Court.
The Law
1. It shall contain the following information, in concise and non-technical language:
i. The full names of the parties to the proceeding and, if relevant, the capacity in which they sue or are sued.
ii. The nature of the claim, with reasonable certainty and detail, including the date, place and nature of the occurrences on which the claim is based.
iii. The amount of the claim and the relief requested.
iv. If the plaintiff is self-represented, the plaintiff’s address, telephone number and email address (if any).
iv.i If the plaintiff is represented by a representative, the representative’s name, address, telephone number, email address (if any) and Law Society of Ontario registration number (if any).
v. The address where the plaintiff believes the defendant may be served.
2. If the plaintiff’s claim is based in whole or in part on a document, a copy of the document shall be attached to each copy of the claim, unless it is unavailable, in which case the claim shall state the reason why the document is not attached.
Legal professionals often discuss the interpretation of the mandate within 7.01(2)2, debating whether it necessitates the attachment of every potential evidence document or only those documents on which the claim is explicitly “based.” The language used in other Rules, such as Rule 13, which mentions the disclosure of evidence documents that may be “relied” upon at trial, implies a potentially different interpretation. Since the terms “based” and “relied” carry distinct meanings, it seems that the Rules intend to attribute a separate definition to each. For instance, in cases where a Plaintiff’s Claim alleges a breach of contract, the claim is deemed “based” on the contract document. Consequently, the written contract document, if available, should be appended to the Plaintiff’s Claim document. Additional documents, serving to prove and support how the contract was breached, are viewed as documents that may be “relied” upon at trial. As a result, attaching them to the Plaintiff’s Claim is not mandatory (although disclosure of such documents will be required at a later date).
As mentioned earlier, Rule 7 mandates a specific level of detail in a Plaintiff’s Claim. According to the precedent set in Weinstein v. HMQ (2019 ONSC 2133), a pleading document must include the necessary details to narrate a comprehensive story outlining the allegations. Additionally, the case of Best v. Ranking (2015 ONSC 6269) emphasizes that a pleading should be “carefully crafted” in a clear and concise manner, avoiding any “vague” or “muddy” allegations. Furthermore, the case of Segal v. Hyperblock Inc. (2021 ONSC 8303) underscores that a claimant must “clearly plead” the essential facts; otherwise, the claim is at risk of failure. It’s worth noting, as elucidated in Cope v. Gesualdi (2021 CanLII 58972) and RVR Concrete v. Windsor Wall Forming (2022 ONSC 4535), the Rules stipulate the necessity of pleading the relevant facts. The court will subsequently review and consider the applicable legal theories based on these facts, as articulated in these respective cases.
[7] However, what it is fundamentally lacking (something Justice Diamond has said in his endorsements on an earlier Rule 2.1 motion brought by the Defendants) are any material facts that gives meat to very spare bones of the pleadings. There is very little, if any, who, what, when, where, and how. As I said to Mr. Weinstein through my questions of him, the Statement of Claim should tell a story of facts about him and the Defendants. A story about what happened to him. What was said or done to him. What, if anything, was promised, to him? What was agreed to? When this happened. By whom. Etc. Most claims are like a story. No doubt, Mr. Weinstein’s claim, can lend itself to this type of story. From this story of facts, the causes of action are found. Obviously, the facts found in the story must ground all the legal requirements of any particular cause of action.
[8] I do know that there is more of a story that can be told. Even apart from Mr. Weinstein’s oral responses to my questions, his Notice of Motion for an injunction provides far more detail about what happened to him. So does his written submissions. However, these are not something I can consider. I say this, even though the Defendants themselves urge me to consider them. The Defendants’ position is that when I do, it is plain and obvious that there are no reasonable causes of action and no leave to amend should be granted. I find though that to do so would not be right. It would not be fair. It will not accord with the law.
[9] On this motion, I can only consider the Statement of Claim and the documents referred to in that Claim. The important document is the “Second Career Participant Agreement” signed between Mr. Weinstein and Her Majesty the Queen in Right of Ontario, as represented by the Minister of Advanced Education and Skills Development. Amongst other things, this contract is about providing financial assistance while Mr. Weinstein is in a training program.
[10] When I consider these documents, I find it plain and obvious that the Statement of Claim contains no reasonable causes of actions. The fundamental reason is that no material facts are pled to support them.
[48] Our courts have also said that requiring “strict adherence to the rules of pleadings would be contrary to the role of the Small Claims Court in the administration of justice.”[17] Our courts have instructed that a “liberal, non-technical approach should be taken to pleadings” in the context of the Small Claims Court.[18]
[49] In 936464 Ontario Ltd. v. Mungo Bear Ltd., the court rejected the defendant/appellant’s argument that it was an error in law for a deputy judge of the Small Claims Court to have granted judgment based on quantum meruit when the claim, as pleaded, was one for breach of contract. In dismissing the appeal, Heeney J. of the Divisional Court very clearly said that the higher standards of pleading required in the Superior Court of Justice are simply unworkable in the Small Claims Court:
More important, though, is the fact that the case at bar was litigated in the Small Claims Court. The higher standards of pleading in the Superior Court are simply unworkable in the Small Claims Court, where litigants are routinely unrepresented, and where legal concepts such as the many varieties of causes of action are completely foreign to the parties. Essentially, the litigants present a set of facts to the Deputy Judge, and it is left to the Deputy Judge to determine the legal issues that emerge from those facts and bring his or her legal expertise to bear in resolving those issues.[19]
[50] Relying on the Newfoundland Court of Appeal in Popular Shoe Store Ltd. v. Simoni, Heeney J. adopted that court’s “practical approach to the manner in which justice is and must be dispensed on a day-to-day basis in our Small Claims Court,” as follows: A Small Claims Court judge has a duty, on being presented with facts that fall broadly within the umbrella of the circumstances described in the Statement of Claim, to determine whether those facts constitute a cause of action known to the law, regardless of whether it can be said that the claimant, as a matter of pleading, has asserted that or any other particular cause of action. Subject to considerations of fairness and surprise to the other side, if a cause of action has been established, the appropriate remedy, within the subject-matter jurisdiction of the court, ought to be granted.[20]
[23] Rule 25.06(8) provides that where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading “shall contain full particulars.” The rule does state that knowledge may be alleged as a fact without pleading the circumstances from which it may be inferred. The purpose for this requirement is:
(a) to enable the alleged wrongdoer to understand with some precision what is being alleged and to be placed in a position that allows a reasonable response; and
(b) to enable a trier of fact.
(Pispidikis v Scroggie (2003), 2002 CanLII 23209 (ON SC), 62 O.R. (3d) 596 at paras 35-36 and Wilson v Toronto (Metropolitan Police Service) supra at para 66-67).
[24] A claim may be found to be frivolous, vexatious or an abuse of process where it contains insufficient material to support the allegations made or to permit a defendant to respond to a claim. (Aristocrat Restaurants Ltd. v Ontario supra at paras. 19 and 28: Wilson v Toronto (Metropolitan Police Service) supra at paras. 66-67). Where the minimum level of factual disclosure has not been attained, the granting of a motion to strike pursuant to Rule 21 is an appropriate remedy, as opposed to granting leave to amend or an order for particulars. (Wilson v Metropolitan Police) supra paras. 73-74).
Particularly in Small Claims Court, where claimants, as here, are often unrepresented, a liberal approach ought to be taken to the pleadings that are presented so as to ensure that access to proper adjudication of claims is not prevented on a technicality … If a claimant by his or her pleading or evidence states facts which, if accepted by the trier of fact, constitute a cause of action known to the law, the claimant should prima facie be entitled to the remedy claimed if that is appropriate to vindicate that cause of action. The only limitation would be the obvious one that if the case takes a turn completely different from that disclosed or inferentially referenced in the Statement of Claim, thereby causing prejudice to the other side in being able properly to prepare for or respond thereto, the court may either decline to give relief or allow further time to the other side to make a proper response.
And, the court further stated, at para. 25:
A Small Claims Court judge has a duty, on being presented with facts that fall broadly within the umbrella of the circumstances described in the statement of claim, to determine whether those facts constitute a cause of action known to the law, regardless of whether it can be said that the claimant, as a matter of pleading, has asserted that or any other particular cause of action. Subject to considerations of fairness and surprise to the other side, if a cause of action has been established, the appropriate remedy, within the subject-matter jurisdiction of the court, ought to be granted.
[39] In Mungo Bear, supra, a plaintiff brought an action in the Small Claims Court on an unpaid invoice. The trial judge found that there was no contract between the parties but awarded the maximum allowable amount in that court on a quantum meruit basis. The defendant appealed, inter alia, on the ground that the judge erred in considering quantum meruit, as it had not been pleaded by the plaintiff. The court in Mungo Bear, supra, dismissed the appeal, and, in so doing, followed Popular Shoe, supra, holding, at para. 45:
The higher standards of pleading in the Superior Court are simply unworkable in the Small Claims Court, where litigants are routinely unrepresented, and where legal concepts such as the many varieties of causes of action are completely foreign to the parties. Essentially, the litigants present a set of facts to the deputy judge, and it is left to the deputy judge to determine the legal issues that emerge from those facts and bring his or her legal expertise to bear in resolving those issues.
[40] I agree with the proposition that, in the Small Claims Court, a liberal, non-technical approach should be taken to pleadings [See Note 8 at the end of the document]. Therefore, unpled relief may be granted (and an unpled defence allowed) so long as supporting evidence is not needed beyond what was adduced at trial, or what reasonably should have been adduced, in support of the relief (or defence) that was pled; and, of course, provided that, in all of the circumstances, it is not unfair to grant such relief (or allow such a defence).
[11] It may be of assistance to the parties, and particularly to Ms. Cerqueira who is not a lawyer, to state some general principles governing pleadings. I set out some of these principles in Cavarra v. Sterling Studio Lofts Inc., 2010 ONSC 3092 (CanLII), [2010] O.J. No. 2211, and I have added some additional principles:
(a) the purpose of pleadings is to give notice of the case to be met, to define the matters in issue for the parties and for the court, and to provide a permanent record of the issues raised: 1597203 Ontario Limited v. Ontario, [2007] O.J. No. 2349; Aristocrat Restaurants v. Ontario, [2003] O.. No. 5331 (S.C.J.) at para. 15; Somerleigh v. Lakehead Region Conservation Authority, 2005 CarswellOnt 3546 (S.C.J.) at para. 5;
(b) the causes of action must be clearly identifiable from the facts pleaded and must be supported by facts that are material: CIT Financial Ltd. v. Sharpless, 2006 CarswellOnt 3325;
(c) every pleading must contain a concise statement of the material facts on which the party relies but not the evidence by which those facts are to be proved: rule 25.06; this includes pleading the material facts necessary to support the causes of action alleged;
(d) a party is entitled to plead any fact that is relevant to the issues or that can reasonably affect the determination of the issues, but it may not plead irrelevant, immaterial or argumentative facts or facts that are inserted only for colour: Williams v. Wai Ping, [2005] O.J. No. 1940 (S.C.J.), aff’d [2005] O.J. No. 6186 (Div. Court.); George v. Harris, [2006] O.J. No. 1762 (S.C.J.);
(e) allegations that are made only for the purpose of colour or to cast a party in a bad light, or that are bare allegations, are scandalous and will be struck under rule 25.11(b): Senechal v. Muskoka (District Municipality), [2003] O.J. No. 885 (S.C.J.);
(f) the court may strike part of a pleading, with or without leave to amend, on the grounds that (a) it may prejudice or delay the trial of an action, (b) it is scandalous, frivolous or vexatious, or (c) it is an abuse of the process of the court: rule 25.11;
(g) on a motion to strike a pleading under rule 21.01(1) on the ground that it discloses no cause of action, it must be shown that it is plain, obvious and beyond doubt that the claim cannot succeed and the pleading must be read generously; allegations of fact, unless plainly ridiculous or incapable of proof must be accepted as proven: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), 1990 CarswellBC 216 (S.C.C.);
(h) any fact that can affect the determination of rights between the parties can be pleaded, but the court will not permit facts to be alleged that are immaterial or irrelevant to the issues in the action: Toronto (City) v. MFP Financial Services Ltd. [2005] O.J. No. 3214 (S.C.J.);
(i) allegations of fraud, misrepresentation, negligence and conspiracy musy be pleaded with particularity: Lana International Ltd. v. Menasco Aerospace Ltd., 1996 CanLII 7974 (ON SC), [1996] O.J. No. 1448.
[12] I accept the submission of Mr. Adair, on behalf of the Extendicare defendants, that while the plaintiffs are entitled to some leeway in the wording of their pleading, and a potentially meritorious claim should not be struck merely because of technical drafting deficiencies, the defendants are entitled to know the case they must meet. The court must be fair to the plaintiff, but it must also be fair to the defendants. In this regard, I respectfully adopt the observation of Cameron J. in Balanyk v. University of Toronto, 1999 CanLII 14918 (ON SC), [1999] O.J. No. 2162 (S.C.J.) at para. 46:
Neither the opposite party nor the court should be forced to nit-pick their way through a long, complex and sometimes redundant and split pleading, parsing each paragraph and each sentence with a view to extracting the claims and related material facts and redrafting them into a clear and precise pleading. It is the responsibility of the party pleading to plead in accordance with the requirements of our law and the purposes of pleading. Bearing in mind National Trust v. Frubacher those purposes are:
(a) to give precise notice to the opposite party of the case which is to be met, sufficient to enable the opposite party to plead;
(b) to assist the court in understanding the material facts alleged and the factual and legal issues in dispute between the parties;
(c) to establish a Shemesh legal against which the parties and the court may determine the relevance of evidence on discovery and at trial and the scope of the evidence which will be required to fairly and efficiently address the issues in dispute.
This requires the party pleading to understand the facts and the law as to what is required to support or defend a cause of action and to then state its position clearly and concisely.
[13] I also note the observation of Epstein J., as she then was, in George v. Harris, above, at para. 20:
The next step is to consider the meaning of “scandalous”, “frivolous” or “vexatious”. There have been a number of descriptions provided in the multitude of authorities decided under this or similar rules. It is clear that a document that demonstrates a complete absence of material facts will be declared to be frivolous and vexatious. Similarly, portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous. The same applies to a document that contains only argument and includes unfounded and inflammatory attacks on the integrity of a party, and speculative, unsupported allegations of defamation. In such a case the offending statements will be struck out as being scandalous and vexatious. In addition, documents that are replete with conclusions, expressions of opinion, provide no indication whether information is based on personal knowledge or information and belief, and contain many irrelevant matters, will be rejected in their entirety.
[14] With due respect to Helen Cerqueira, much of the difficulty with the pleading in this case is that it is a jumble of complaints, some of which are recognized by law and some of which are not. These complaints are, in many cases, not asserted as elements of proper causes of action supported by material facts going to either liability or damages. It is almost impossible for the defendants to do anything other than guess about the nature of the plaintiffs’ complaints against them. As expressed above, defendants are not required to do this. They are entitled to know the case they must meet.
[18] Rule 7.01(1) of the Rules states that: “An action shall be commenced by filing a plaintiff’s claim (Form 7A) with the clerk, together with a copy of the claim for each defendant”. Rule 7.01(2)1.ii goes on to state that: “The following requirements apply to the claim: It shall contain the following information, in concise and non-technical language: The nature of the claim, with reasonable certainty and detail, including the date, place and nature of the occurrences on which the claim is based.”
[19] The plaintiff has not complied with this rule. It is actually surprising to me, as he is in the accounting business and surely he must have the ability to set forth, in a concise and fluid manner what in fact he is basing his $10,000 claim upon – that is what facts and figures, clearly set forth. He has not done so.
….. [22] As stated above, I am concerned that the plaintiff’s claim lacks clarity and has not set forth, in a concise manner, particulars upon which his claim is based.