Introduction
The focus on material facts at the pleading stage is integral to the structure of modern civil procedure. Through their pleadings, the parties to a lawsuit are required to delineate contested matters for the purpose of bringing to a finer point the issues the court must decide.
The first rule of pleadings is codified in Rule 3-1(2)(a), namely, that a pleading shall set out “a concise statement of the material facts giving rise to the action”. The material facts as pled will have a great effect on the course of the litigation. Not only will they define the scope of document production and examination for discovery, they project your legal theory of your case and represent the points you must prove in order for your client to succeed.
While specificity is admirable in pleadings, we must be careful that our pleadings include enough information to fully represent the extent of our claims and responses. This paper will consider the issue of particulars in pleadings, including the extent to which they are required and how to obtain further particulars.
When are Particulars Required?
Supreme Court Civil Rules 3-7 (18)-(24) set out when and how particulars are to be pleaded:
When particulars necessary
(18) If the party pleading relies on misrepresentation, fraud, breach of trust, willful default or undue influence, or if particulars may be necessary, full particulars, with dates and items if applicable, must be stated in the pleading.
Lengthy particulars
(19) If the particulars required under subrule (18) of debt, expenses or damages are lengthy, the party pleading may refer to this fact and, instead of pleading the particulars, must serve the particulars in a separate document either before or with the pleading.
Further particulars
(20) Particulars need only be pleaded to the extent that they are known at the date of pleading, but further particulars
(a) may be served after they become known, and
(b) must be served within 10 days after a demand is made in writing.
Particulars in libel or slander
(21) In an action for libel or slander,
(a) if the plaintiff alleges that the words or matter complained of were used in a derogatory sense other than their ordinary meaning, the plaintiff must give particulars of the facts and matters on which the plaintiff relies in support of that sense, and
(b) if the defendant alleges that, insofar as the words complained of consist of statements of fact, they are true in substance and in fact, and that insofar as they consist of expressions of opinion, they are fair comment on a matter of public interest, the defendant must give particulars stating which of the words complained of the defendant alleges are statements of fact and of the facts and matters relied on in support of the allegation that the words are true.
Order for particulars
(22) The court may order a party to serve further and better particulars of a matter stated in a pleading.
Demand for particulars
(23) Before applying to the court for particulars, a party must demand them in writing from the other party.
Demand for particulars not a stay of proceedings
(24) A demand for particulars does not operate as a stay of proceedings or give an extension of time, but a party may apply for an extension of time for serving a responding pleading on the ground that the party cannot answer the originating pleading until particulars are provided.
Particulars are intended to provide the opposing party with sufficient detail to inform him or her of the case he or she has to meet, so that proceedings are conducted fairly, openly and without surprise. They are supposed to disclose what the pleader intends to prove, but not how he or she intends to prove it1. This is the distinction between material fact, which should be pleaded, and evidence, which should not.
Material Fact v. Evidence
The distinction between evidence and material fact can be hard to find. In Firestone v. Smith, the court considered where this line should be drawn:
Particulars are provided to disclose what one party intends to prove against the other; how the party intends to prove his case is a matter of evidence. A defendant is not entitled to know what precise evidence the plaintiff may lead in support of his allegations of fact. The defendant is not entitled to ascertain the evidentiary basis of the plaintiff’s case by way of a demand for particulars2.
In Firestone, the plaintiff alleged that the defendant defamed him in comments made in a conversation broadcast over the defendant’s car radio telephone. The plaintiff pleaded that the defendant had bragged, “that if Moe Sihota is the Attorney General, Sihota has committed to make him the ADM for criminal justice”. In response, the defendant pleaded fair comment and claimed “the plaintiff had, as of June 12, 1990, stated that if Sihota were to be the Attorney General he would be the ADM for criminal Justice.”
The plaintiff sought particulars as to who had made this comment, when it was made, and in what circumstances it had been made. The defendant replied that such information was a matter of evidence and not a material fact for the purpose of pleadings. The court noted that the opposite party to a lawsuit is entitled to know what its opponent intends to prove, but the manner in which the party intends to prove those facts is a matter of evidence that is properly the subject matter of discovery, not of an order for particulars. The court found that the plaintiff was seeking evidence, and not particulars:
It is clear that what is in issue, on this aspect of the case, is whether the plaintiff made the statement alleged to other persons prior to June 12, 1990 and whether persons conveyed that information to the defendant Smith. I do not see how any “surprise” can arise on discovery, particularly when the fact alleged consists of statements – allegedly made by the plaintiff himself. In my view the “surprise” which particulars are required to avoid is something different from uncertainty as to the precise evidence which may be given or which may be available to prove a fact.
In my view the concern raised by the plaintiff at this stage is that he does not know but would like to know now what precise evidence the defendant may lead in support of his allegations of fact. In my respectful opinion the plaintiff is not entitled to ascertain the evidentiary basis of the defendant’s case by way of this demand for particulars.
While the principles espoused in Firestone make it a leading case regarding the distinction between evidence and material fact, the decision does not make it any easier to know where to draw the line.
In Lehoux v. Riehl3, the court distinguished Firestone. Where a defendant wrote in a newspaper that mine workers had been terminated for being injured and disciplined for refusing to do unsafe work, the names of those mine workers were considered to be a material fact and were ordered to be particularized.
Details regarding a plaintiff’s loss of enjoyment of life, past and prospective disability, past and prospective loss of earnings and loss of earning capacity, loss of housekeeping capacity, special damages and in trust claims have all been found to be evidence and not fact and therefore not subject to a demand for particulars4, but loss of income, past and prospective, as well as special damages have also been found to be facts, and subject to particularization5.
Rule 3-7(18) Particulars
Pursuant to Rule 3-7(18), full particulars are necessary whenever a party relies on misrepresentation, fraud, breach of trust, willful default, or undue influence. This requirement is recognition of the principle that where a plaintiff makes a serious allegation of misconduct, the plaintiff will not be allowed to go on a fishing expedition to obtain the particulars of the allegation6. These particulars should include any material dates, times, and communications.
In Proconic, supra, the plaintiff alleged that the defendants, who were former directors and officers of the plaintiff, breached their fiduciary duties to the plaintiff by accepting secret commissions and profits from business directed away from the plaintiff, converting the assets of the plaintiff for their own profit and gain and using the plaintiff’s confidential information for their own gain. The plaintiff refused to provide particulars of what secret commissions or profits had been accepted, which of the plaintiff’s assets had been converted, or what confidential information had been stolen. The plaintiff argued that this information was in the possession of the defendants and that particulars should not be ordered until after it had had the opportunity to discover the defendants.
Regarding the necessity of providing some particulars to substantiate the plaintiff’s claim, Madam Justice Southin wrote at paragraph 22:
I think a plaintiff who makes serious allegations of misconduct against someone who stands in a fiduciary relationship to him and who says he cannot give any particulars of those allegations must adduce some evidence even if very little in order to require a defendant to answer. Defendants are not to be called upon to answer a bald allegation of breach of fiduciary duty of which there is no evidence and of which no particulars are given.
By so finding, Madam Justice Southin recognized that without the requirement for particulars, a plaintiff would be at liberty to make any wild accusation it wanted, and “every person who had ever stood in a fiduciary relationship to anyone else could be forced to account for all his own personal financial affairs to establish his own innocence”. She ordered that the requested particulars setting out what secret commissions or profits had been accepted, which of the plaintiff’s assets had been converted, and what confidential information had been stolen be provided within 14 days and costs of the application were awarded to the defendants in any event of the cause.
Rule 3-7(18) applies equally to a Response as to a Notice of Civil Claim. If the defendant is relying on a defence of fraud, misrepresentation, breach of fiduciary duty, breach of trust, willful default or undue influence, full particulars supporting the defence must be provided, with dates and items if applicable.
Particulars from a Professional Negligence Perspective
Situations in which particulars may be ordered are not limited to the circumstances listed under rule 3-7(18). Full particulars may be demanded in any action7.
In a professional negligence action, misrepresentation is often pleaded. Details of the alleged misrepresentations, including when and where they were made, by whom and to whom they were made, whether they were made orally or in writing, and specific details of the words and conduct of the parties will be required in these cases, as will details of why the defendant ought reasonably to have foreseen that the plaintiff would rely on the representations. Plaintiffs should also particularize their allegations of negligence in these cases. As suggested by the precedent for pleading professional negligence as it appears in British Columbia Court Forms8, these particulars may include details regarding the standard of care of professionals in the defendant’s field, including procedures the professional should have followed, as well as the particular ways in which the professional failed to meet the standard. If a party alleges a violation of a regulation, code or order, it should also plead the facts that it alleges constitute a violation of the regulation or order cited9. The plaintiff should also particularize the facts that establish the relationship between the parties resulting in the alleged duty of care.
For example, in Yewdale v. ICBC, 10the plaintiff brought an action in negligence, breach of contract and bad faith against her former lawyers after she was found liable for an amount exceeding her policy limits. She alleged that her former lawyers were negligent in
1. failing or neglecting to make a reasonable or timely or any investigation of all possible sources of fact relevant to the issues of liability and damages including the accident scene, witnesses, driving, accident or police records, medical or hospital records school records, employment records, income tax returns, and clinical records;
2. failing or neglecting to, in a reasonable or timely manner, or at all, retain agents or experts;
3. failing or neglecting to advise the Plaintiff in a reasonable or timely manner or at all about
a. the results of their efforts in the defence of the Plaintiff’s position such that the Plaintiff could reasonably consider settlement of the action at the earliest possible times or on terms most advantageous to the Plaintiff;
b. quantum of damages and liability and likelihood that she would be found at fault for the collision;
c. the likelihood that the claims of Gervais could exceed the policy limits of the Plaintiff’s insurance coverage for such claims by three million dollars, and further, that the Plaintiff was at risk of being found fully responsible for the motor vehicle accident, and thereby, entitled to independent legal counsel at the expense of the Defendant ICBC and to the appeal of any adverse judgement at the expense of the Defendant ICBC;
4. failing to consult with a obtain instructions from the Plaintiff in relation to the conduct of trial including, but not limited to:
a. quantum of damages;
b. choice of liability witnesses;
c. ongoing settlement negotiations;
5. agreeing on damages at a figure that was hight than reasonable without giving proper or due consideration to reasonable reductions that ought to have been made.
The defendants sought further and better particulars including
- What material facts relevant to liability and damages were not discovered;
- What agents and experts were not retained;
- What advice was unreasonable or untimely, including the dates, contents and circumstances of same;
- When did the defendants fail to consult with the plaintiff in relation to the conduct of trial, quantum of damages, choice of liability witnesses and settlement negotiations;
- To what extent was the damages award higher than was reasonable;
- What deductions from damages were unreasonably omitted; and
- What facts were not considered by what experts?
The defendant argued that it had conduct of the previous litigation over a considerable length of time and the plaintiff ought not to be able to conduct an extensive examination for discovery of all its actions or omissions without first particularizing the acts or omissions of which she complained.
The court agreed, particularly because the plaintiff’s pleadings brought the defendants’ professional reputation into question:
The rule for this plaintiff is that she must state her claim with certainty and precision setting out the facts within her knowledge and upon which she bases her claim. She is not merely to plead the conclusions of negligence or other matters and then embark on a “fishing expedition” with respect to the conduct of the action to determine whether or not there are any facts to support those conclusions.
That is particularly so when a plaintiff’s claim is made against reputable professionals questioning the competence of the services rendered by framing that claim in negligence or bad faith (emphasis added).
The court found that the plaintiff was required to answer the defendants’ demand for particulars in full, although the questions relating to unreasonable or untimely advice and failure to consult were to be supplied after examination for discovery.
Defendants should also be careful to particularize in their Responses. For example, in the case of misrepresentation, the defendant should provide particulars that show why the defendant was not in a special relationship with the plaintiff giving rise to a duty of care, as well as the facts relied on to show that the Plaintiff did not rely on the misrepresentations made. If such particulars are not known at the time the Response is filed, then that should be noted in the Response.
Particulars Ordered After Discovery
In appropriate cases, the plaintiff may be able to defer providing particulars until after examinations for discovery. There is no hard and fast rule for when particulars should precede discovery11, but generally, where the information requested does not lie exclusively with the opposing party, it should be disclosed prior to examinations for discovery.
In H.T.M.Q. v. Canadian National Railway12, the plaintiff was suing the defendant for damages caused by a forest fire, which the plaintiff alleged was started by one of the defendant’s trains. The defendant demanded particulars as to which of its trains caused the fire. The plaintiff argued that the defendant’s application constituted a request for evidence and that the issue should be left to explore during discovery. In the alternative, the plaintiff submitted that the information sought was solely within the defendant’s knowledge and that the plaintiff required full disclosure of documents and examinations for discovery before it could answer the defendant’s question. The plaintiff did not have a witness to the accident and was relying solely on circumstantial evidence.
The court considered the definition of a material fact and found that whether a particular fact is or is not material depends mainly on the circumstances of a particular case. If a fact is necessary for a party to know the nature of the case it has to meet, then it will be material. The court found that on the circumstances of that case, the defendant was aware of the nature of the case it had to meet, but that the plaintiff’s pleadings should be narrowed and the specific train identified. However, as the details regarding the train that started the fire were within the exclusive knowledge of the defendant, the application was adjourned until after discoveries could take place.
Courts have found that there is a difference between the necessity for particulars for the purpose of pleading and for the purpose of trial13, and that certain particulars may be ordered after a defence has been entered that might not be ordered before14. This was the case in Neptune Bulk Terminals (Canada) Ltd. v. Kilborn Engineering Pacific Ltd15. In that case, the plaintiff sued the defendant engineers pursuant to a contract entered into for advice, expertise, design and agency services with respect to a multi million-dollar project. Counsel agreed that the litigation would be lengthy and costly. The defendants demanded particulars after receiving the statement of claim, which was 21 pages long, and received them. The defendants then brought an application for further and better particulars for clarification of the phrase “additional works and remedial works”. The defendants also sought particulars of each instance of alleged delay to the project, including what caused the delay, how the work was impeded, how long the delay lasted and how many dollars of additional works and remedial work were incurred.
The defendants submitted that, while they could provide a pro forma response with the information they had, they were unable to provide a fulsome response without further narrowing of the issues. The court found that the defendants had failed to demonstrate an inability to plead without further particulars, given their own evidence that they could file a pro forma response and amend at a later stage.
The court remarked that the emphasis on an application for particulars can shift depending on the stage of the litigation. The court was unwilling to unduly hamper the plaintiff at a stage of the proceeding in which the defendant had not yet even filed a response and had the ability to do so. As the plaintiff’s claim did not appear to be in the nature of a fishing expedition, the court determined that, for the time being, the matters at issue were sufficiently delineated to allow the defendant to file a response, and could be further narrowed upon application after discoveries if necessary.
In Kowalewski v. Investors Group Financial Services Inc.16, the plaintiffs invested their savings with the defendant. The defendant assigned a financial advisor to supervise the plaintiffs’ investment files. The British Columbia Securities Commission eventually terminated the financial advisor’s licence to sell mutual funds, because he: (a) engaged in unlicenced activities while employed by Investors; (b) had an untreated gambling addiction; (c) borrowed money from clients, such that his total indebtedness exceeded $1.6 million; and, (d) deceived the Securities Commission. The plaintiffs were not informed of this action and when the financial advisor left the Investors, he convinced the plaintiffs to withdraw their investment funds from Investors and transfer those funds into his control. The plaintiffs then lost all of their money.
The plaintiffs brought an action against the defendant in negligent non-disclosure, amounting to a breach in fiduciary duty. After filing a Response, the defendant sought further and better particulars of the plaintiff, but the application was dismissed. Given that the plaintiff’s claim was for negligent non-disclosure, it followed that the plaintiffs did not have access to the full details of the evidence to support each and every one of their allegations contained in the Statement of Claim at this time. The circumstances surrounding the dismissal of the financial advisor and the reasons therefore were solely within the knowledge of Investors.
The scope of particulars that may be demanded is limited to particulars that delineate the issues between the parties. If the details requested will do no more than disclose the way in which the case will be proven, then particulars will not be ordered”17. A court will generally err on the side of ordering further particulars on the basis that anything that can be done to bring the real issues between the parties fairly forward without surprise for careful consideration must be encouraged18. This is particularly true of complex products liability cases where the pleadings are broad and the need to avoid surprise requires the court’s discretion be exercised in favour of the party seeking to tie the hands of its adversary19.
What to do if you are not provided with sufficient particulars
If you decide upon your review of the Notice of Civil Claim that you cannot properly respond due to lack of particulars, you have two options. Under Rule 3-7(24), the appropriate step to take where an opposing party refuses to agree to an extension of time is to bring an application for that extension on the grounds that you cannot answer the pleadings until particulars are provided. In the alternative, filing a Response does not constitute a waiver of the right to particulars20, so if necessary, a blanket denial can be filed and amended at a later date. Be aware that a demand for particulars does not constitute a stay of proceedings, so do not rely on it to stop the limitation for filing a Response from running.
As stated above, Rule 3-7 creates two categories of actions under which further or better particulars may be required. In accordance with Rule 3-7(18), full particulars are necessary whenever a party relies on misrepresentation, fraud, breach of trust, willful default, or undue influence. Under Rule 3-7(21), both plaintiff and defendant have obligations to provide certain particulars in actions for libel or slander.
In a recent decision of the B.C. Supreme Court on a Rule 6-1(1) application, Madam Justice Adair made the following relevant observations in relation to the plaintiffs’ application to amend their Notice of Civil Claim to further particularize their allegations of fraud and conspiracy as against their realtors and others:
The court will not allow useless amendments, and an application to amend is considered on the same basis as an application to strike a pleading under Rule 9-5: see Victoria Grey, at pp. 46-47; Shaw Cablesystems Ltd. v. Concord Pacific Group Inc., 2009 BCSC 203 (CanLII), 2009 BCSC 203 at para. 8.The court will not give its sanction to amendments which violate the rules that govern pleadings. These include the requirements relating to conciseness and the pleading of material facts (Rule 3-1(2)(a)); that a pleading must not contain the evidence by which the facts alleged in it are to be proved (Rule 3-7(1)); that a party must not plead an allegation of fact inconsistent with the party’s previous pleading, although a party is permitted to plead in the alternative (Rule 3-7(6) and (7)); the requirement to provide particulars (Rule 3-7(18)); and the prohibition against pleadings which disclose no reasonable claim or are otherwise scandalous, frivolous or vexatious or embarrassing (Rule 9-5(1))21.
Madam Justice Adair went on to describe the purpose of pleadings as defining and limiting the issues in an action in order to promote fairness, judicial economy and exposition of the truth. This is necessary so that the court understands the dispute and the parties have a fair notice of the case to be met and the remedies to be sought. Where further particulars will only further confuse already problematic pleadings, they will not be ordered.
In addition to these specific cases, a party may demand particulars under Rule 3-7(23) in any circumstance where the opposition’s pleading is so vaguely drawn that it is difficult to identify the case to be met, following which an application may be brought under Rule 3-7(22).
The primary distinction between particulars required by Rule 3-7(18) and (21) and those ordered under Rule 3-7(22) is the requirement in the latter case for a preliminary demand. Beyond that, the court will be guided in determining whether and what particulars should be ordered by the functions served by particulars, identified by Lambert J.A. in Cansulex Ltd. v. Perry (at para. 15):
- To inform the other side of the nature of the case they have has to meet as distinguished from the mode in which that case is to be proved;
- To prevent the other side from being taken by surprise at the trial;
- To enable the other side to know what evidence they ought to be prepared with and to prepare for trial;
- To limit the generality of pleadings;
- To limit and decide the issues to be tried, and as to which discovery is required; and
- To tie the hands of the party so that he cannot without leave go into any matters not included.
In Yewdale v. ICBC, supra, the court used the considerations set out in Cansulex and other authorities to determine the principles that should be considered on each application for particulars:
- Given the increasing number and complexity of cases brought before our court, any steps legitimately taken to clarify the issues and reduce the length of trial must be encouraged;
- Parties to an action must frame their pleadings with certainty and they are not permitted to bring or defend an action in the hope that the claim or defence will be established by admissions on a notice to admit or at an examination for discovery. In framing their pleadings, so much as is possible and practical, the parties must set out the facts but not the evidence on which they intend to rely to prove their claim or defence;
- The purpose of particulars is to require a party to clarify the issues raised by the pleadings so that the opposite party may be able to properly respond to the pleadings and to properly prepare for an examination for discovery and for trial;
- An examination for discovery is not a substitute for an order for particulars and an application for particulars should not be defeated by an argument that the applicant can get the same particulars by way of conducting an examination for discovery.
- If the particulars applied for are generally only known to the party making the application, that party may be required to give discovery prior to particulars being ordered.
- The order for delivery of particulars is one of discretion to be exercised in a judicial manner. In exercising the discretion, the justice or master must be mindful of the stage of proceedings when determining whether or not:
- sufficient particulars have been given, or
- particulars should be delivered now, or
- particulars should be given following an examination for discovery, or
- some particulars should be given now and others given later following discoveries22.
Particulars will be ordered on the basis that they are necessary for the defendant to meet the case against it, or to delineate the issues between the parties23. They will not be ordered if it would only be helpful to the defendant to have them. This is particularly true in cases where the defendant has personal and exclusive knowledge of matters that the plaintiff does not have. As stated above, in those situations, the defendant will usually not be entitled to particulars until after discovery has taken place. However, an application for particulars will not be denied because what is sought can be or has been obtained on discovery or because what is sought in the demand is best known to the party demanding24
Conclusion
Parties often overlook proper particularization of a claim or a response, but it is necessary in order to determine the matters at issue in the claim. Without proper particulars, it becomes difficult for the opposing party to understand the case that it is expected to meet.
In certain cases, such as claims for misrepresentation, fraud, breach of trust, willful default or undue influence, as well as in defamation suits, full particulars must be stated in the pleadings. However, further particulars may be demanded in any case where the opposition’s pleading is so vaguely drawn that it is difficult to identify the case to be met.
An order for further and better particulars is discretionary. The judge must decide if the particulars already given are sufficient or if further particulars should be delivered upon application or following discovery25.
It is important to consider strategy before bringing an application for particulars. From a practical perspective, one effect of a demand for further particulars is often to encourage your opposition to remedy a half-baked claim or defence, to the prejudice of your own client. As a rule of thumb, demands for particulars should be reserved for those cases where you genuinely need additional facts to know what is in issue before you plead or conduct discovery.
_________________________________________________
1 Cansulex v. Perry, [1982] B.C.J. No. 369 (QL) (C.A.) [Cansulex].
2 Firestone v. Smith, [1991] B.C.J. No.2660.
3 [1997] B.C.J. No. 1736 (BCSC).
4 Yousofi v. Phillips, 2010 BCSC 1178.
5 Green v. Funaro, [1964] B.C.J. No. 28 (BCSC); Mellor v. Hoffman, [1978] B.C.J. No. 826 (BCSC).
6 Proconic Electronics Ltd. v. Wong (1985), 67 B.C.L.R. 237 (S.C.).
7 Harris v. Ray Kissack Memorial Housing Society, 2003 BCSC 1476.
8 McLachlin & Taylor, British Columbia Court Forms, (Toronto: LexisNexis).
9 Nesbitt v. Wintemute, (1978) 8 BCLR 286 (BCSC) [Nesbitt], citing Granholm v. Western Can. Greyhound Lines Ltd. (1952), 6 W.W.R. (N.S.) 562 (B.C) at 29.
10 [1994] B.C.J. No. 1892 (S.C.).
11 ICBC v. Sam, (1998), 24 CPC (4th) 338, Mansoor v. Majeed, 2008 BCSC 1347.
12 2003 BCSC 320.
13 Canada Starch Co. v. Lawrence Starch Co., [1936] O.R. 261 at 277.
14 Sachs v. Spielman (1887), 37 Ch. D. 295.
15 [1994] B.C.J. No. 75 (BCSC).
16 2001 BCSC 300.
17 Cansulex, supra at note 1; G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada Ltd, 1993 CanLII 187 (BCSC) [GWL].
18 Cansulex, supra at note 1, at para 16.
19 Cominco v. Westinghouse Canada Ltd, 1978 CanLII 234 (BCSC) [Cominco]; GWL, supra at note 17, at 130.
20 Nesbitt, supra at note 9, at p.287.
21 Virk v. Brar 2011 BCSC 301 at para. 6.
22 Yewdale v. ICBC, supra at note 10.
23 Hayes Heli-Log Services Ltd. v. Acro Aerospace Inc., 2006 BCSC 80.
24 GWL, supra, at note 17.
25 Cominco, supra, at note 19, at pp. 29-30.
Prepared by former associate, Lindsey Williams.