COURT FILE NO.: CV-21-00662251-0000

DATE: 2022-07-04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SANDRA MEARS GRIFFITHS

Adam Wilson, for the Moving Party/Plaintiff

Moving Party/Plaintiff

• and -

ANTHONY STEPHEN BENJAMIN LAW PROFESSIONAL CORPORATION trading as BENJAMIN LAW, ANTHONY STEPHEN BENJAMIN and OLI AKINSANMI

Visnja Jovanovic, for the Responding Parties/Defendants

Responding Parties/Defendants

HEARD: January 18, 2022

ASSOCIATE JUSTICE: D. MICHAEL BROWN

REASONS

Introduction

1The Plaintiff brings this motion seeking to strike out certain paragraphs of the Defendants' Amended Statement of Defence. The plaintiff's motion originally sought to strike out paragraphs of the Defendant's original Statement of Defence. In response to the motion, the Defendants served an Amended Statement of Defence which included amendments aimed at addressing concerns raised in the Plaintiff's Notice of Motion. The Plaintiff initially refused to consent to the filing of the Amended Statement of Defence. At the outset of the hearing of this motion, the parties agreed that the Plaintiff would accept service and consent to the filing of the Amended Statement of Defence on the understanding that such acceptance and consent was without prejudice to the Plaintiff's right to challenge the adequacy of the amended pleading on this motion. The parties further agreed that this motion would be heard and determined as a motion to strike the subject paragraphs from the Amended Statement of Defence as opposed to the Statement of Defence.

2The Plaintiff submits that the Amended Statement of Defence does not adequately respond to numerous allegations contained in the Statement of Claim as it fails to support general blanket denials of those allegations with the Defendants' own version of facts as required by Rules 25.07(3)¹, and it contains an insufficient pleading of material facts contrary to Rule 25.06(1). The Plaintiff specifically seeks to strike out those paragraphs of the Amended Statement of Defence containing the impugned blanket denials.

3This is a solicitor's negligence action relating to the Defendants' representation of the Plaintiff in respect of claims arising from a motor vehicle accident which occurred in 2016. The named Defendants are the law firm retained by the Plaintiff and two of the individual lawyers at the firm that represented and advised her. The Plaintiff seeks damages as against the Defendants for negligence and breach of contract with respect to the Defendants' representation of the Plaintiff in her accident benefits claim, and with respect to the $225,000 settlement of her tort claim. The Plaintiff also seeks a declaration that the Defendants are not entitled to any renumeration for the services they provided and claims repayment of all remuneration paid to the defendants other than for disbursements reasonably incurred.

The Statement of Claim

4The Plaintiff's Statement of Claim in was issued on May 13, 2021. It is 31 pages long and consists of 49 numbered paragraphs. Approximately 20 paragraphs of the Statement of Claim relate to the Defendants' alleged negligence in their representation of the Plaintiff in her accident benefits claim. In essence, the Plaintiff claims that as a result of the Defendants' negligence the Plaintiff failed to receive accident benefits to which she was entitled. The alleged negligent acts or omissions of the Defendants in this regard are set out in considerable detail in the Statement of Claim and include the following:

a) Failing to challenge the conclusions reached by the insurer's medical experts who assessed the plaintiff in relation her claim for income replacement benefits ("IRBs");

b) Failing to challenge the insurer's demand for a further medical assessment in relation to the IRBs and incorrectly advising the Plaintiff she was required to attend such an assessment;

c) Failing to challenge the termination of the Plaintiff's IRBs at the time of termination or to provide timely advice on commencing a proceeding before the Licence Appeal Tribunal to challenge the termination of IRBs;

d) Failing to commence arbitration proceedings challenging the insurer's cessation or denial of benefits in respect of attendant care and certain treatment plans or to provide any advice in that regard;

e) Permitting the Defendant, Akinsami, who the Plaintiff alleges was not sufficiently trained or supervised, to have day to day carriage of the Plaintiff's case;

5The Plaintiff's claims in relation to the Defendants' representation of her in the tort action are set out in 15 paragraphs of the Statement of Claim. The Plaintiff's claim for damages in relation to the tort action are based on an allegation that the settlement entered into on the Defendants' advice was improvident. The Statement of Claim alleges that the Defendants were negligent both in the conduct of the mediation and settlement negotiations resulting in the settlement and in the conduct of the litigation leading up to mediation and settlement.

6With respect to the Defendants' conduct in the settlement negotiations, the Plaintiff claims that at the mediation in February 2019, the Defendants made an opening settlement offer on her behalf that was substantially less than the amount she had instructed them to offer. She also claims that she instructed the Defendants during the settlement negotiations to request the tort defendant to make an advance payment on her claim. While the Plaintiff admits in the Statement of Claim that the Defendants advised her the request had been made and was denied, she pleads that she has no knowledge of whether that occurred, implying that it had not.

7The Statement of Claim alleges that the Defendants were negligent in recommending the $225,000 settlement to the Plaintiff as being a fair and reasonable settlement of her claims. The Statement of Claim describes the settlement amount as "a wholly erroneous underestimate of the amount to which [the Plaintiff] was entitled".

8The Statement of Claim also alleges that the Defendants were negligent in the conduct of the tort litigation, particularly in relation to the production of the Plaintiff's medical records and to obtaining expert opinions. The Plaintiff pleads that the Defendants improperly produced the Plaintiff's medical records dating back to 2004 in the Plaintiff's Affidavit of Documents and on examination for discovery, notwithstanding that the "the relevant jurisprudence supported the proposition that pre-accident production of medical records would ordinarily be limited to a three-year period prior to the accident". The medical records produced included records relating to the Plaintiff's prior motor vehicle accident in 2009. The Plaintiff alleges such production caused her harm:

"... the production of medical documentation which was not required to be produced resulted in the tort defendant being in a position where it could rely upon assertions that the plaintiff had not sustained any serious injury in the subject motor vehicle accident, but rather, that her problems emanated from the accident which occurred in November 2009 or earlier."

9The Plaintiff also alleges that the Defendants were negligent in failing to commission various expert reports on her behalf in advance of the mediation and settlement. The Statement of Claim identifies reports from twelve different experts that the Plaintiff alleges that Defendants ought to have commissioned. The Plaintiff claims this failure "resulted in a scenario where the plaintiff proceeded to the said mediation without the necessary expert opinions to support her claims. The plaintiff states and the fact is that the result of same was to create less risk for the tort defendant, and to deprive the plaintiff of an appropriate basis for settling the claims in her favour."

10The Statement of Claim includes seven paragraphs relating to the fees and disbursements, however, only two of those paragraphs (paragraph 48 and 49) appear to relate directly to the Plaintiff's claim that the Defendants are entitled to no remuneration, or reduced renumeration, for the services rendered.

11In paragraphs 43-47 of the Statement of Claim, the Plaintiff claims that she was induced into the settlement of her tort claim by the Defendants' offer to reduce their account such that the Plaintiff would recover $150,000 from the $225,000 settlement after payment of the Defendant's fees. The Plaintiff admits that she ultimately recovered $150,000 from the settlement, and that the Defendants' fees had been reduced to achieve that result. However, she pleads that the amount of the fee reduction taken by the Defendants was less than she originally understood based on the Defendants' representations as to the structure and allocation of the settlement.

12The Plaintiff does not plead that Defendant represented to her a specific amount for the fee reduction. Instead, the Plaintff appears to allege that the Defendants employed an incorrect settlement allocation (as among damages, interest, disbursements, costs and HST) that had the effect of inflating the apparent amount of the fee reduction. I say "appears to allege" as the Statement of Claim is far from clear on this point. Although the Statement of Claim provides the Plaintiff's position on how the settlement amount ought to have been allocated, it fails to plead what allocation was employed by the Defendants, why that allocation was incorrect or how that incorrect allocation impacted the apparent amount of the fee reduction.

13The Plaintiff has not claimed in paragraphs 43-47 or elsewhere in the Statement of Claim that she is entitled to a further reduction in the fees paid to the Defendants based on her discussion with them regarding the structure and allocation of the settlement. Instead, paragraphs 43-47 of the Statement of Claim appear to relate to the Plaintiff's allegation that the Defendants negligently induced or encouraged her to enter into an improvident settlement. The Plaintiff's allegations in support of her claim for the return of all or part of the renumeration paid to the defendants are contained in paragraphs 48 and 49:

48. The amended account of P.C. [the defendant law firm] dated December 2, 2019, contained charges of $69,091.87 for fees and HST. The plaintiff states and the fact is that the services performed by the defendants were negligently performed to the extent that the defendants should not be entitled to any remuneration. In the alternative, the plaintiff requests this Honourable Court to determine the appropriate amount, if any, payable to P.C. and Benjamin and to require P.C. and Benjamin to repay to the plaintiff any overpayment with respect to said account.

49. Further, P.C. and Benjamin delivered an account to the plaintiff dated April 12, 2021, purportedly pertaining solely to her accident benefit claims, in the amount of $17,789.80. The plaintiff requests this Honourable Court to determine the appropriate amount payable with respect to the same.

14The only basis pleaded for the Plaintiff's claim for a return of the remuneration paid to the Defendants is that the services provided by the defendants were "negligently performed". Paragraph 48 does not particularize the services that were negligently performed or specifically reference any allegations of negligence elsewhere in the Statement of Claim. Read generously, the Plaintiff appears to be relying on the allegations of negligence in the balance of her pleading in support of the claim for a return of all or part of the remuneration paid. In any event, no additional material facts are pleaded in support of this claim.

The Amended Statement of Defence

15The Amended Statement of Defence is 10 pages long and consists of 51 numbered paragraphs. In addition to specific denials of the Plaintiff's allegations (as summarized below), it includes the following boilerplate denial of negligence one would expect to see in the defence of a solicitor's negligence claim:

6. At all material times, the defendants acted without fault or negligence on the facts and information available to them in accordance with the standards applicable in Ontario at the material times. They devoted their best skills and diligence to the interests of the plaintiff, completed their work in a good and professional manner, and exercised the level of care expected of reasonably competent lawyers with respect to the plaintiff's accident benefits claim and tort claim.

7. At all material times, the defendants acted in good faith in carrying out their duties. They specifically deny the allegations of breach of duty of care and breach of contract as contained in the statement of claim and put the plaintiff to the strict proof thereof.

16The Statement of Defence also broadly denies any negligence in relation to the alleged lack of training and competence of the Defendant, Akinsanmi:

8. The defendants specifically deny the allegations contained in paragraph 16 of the statement of claim with respect to Ms. Akinsanmi's training and competence. Ms. Akinsanmi had the legal training and acumen required to provide the plaintiff with legal representation relating to the plaintiff's accident benefits and tort claims. The defendants state that in any event, Mr. Benjamin provided input and supervisory oversight and continued to have carriage of the file through to the time that the plaintiff retained new counsel in or around February 2021.

17The Amended Statement of Defence further specifically denies that the Plaintiff has suffered any damages as alleged because she was not entitled to the accident benefits or tort damages she claims to have lost as a result of the alleged negligence:

43. The defendants plead that the alleged injuries of the plaintiff, which are not admitted and are specifically denied, were caused or contributed to by prior or subsequent accidents, injuries, traumatic events including but not limited to the tragic and unexpected death of the plaintiff's son in 2017, diseases or medical conditions, which do not have as their genesis the accident as pleaded in the statement of claim.

44. The defendants plead that if the plaintiff suffered any damages, then she is not entitled to bring this action because she has not sustained a permanent serious impairment of an important, physical, mental or psychological function or a permanent serious disfigurement, as required by section 267.5(5) of the Insurance Act, R.S.O. 1990, c.I.8 (the "Insurance Act").

18The Amended Statement of Defence includes a detailed response to the Plaintiff's allegations relating to the Defendants' representation of the Plaintiff in her accident benefits claim. In paragraph 22 of the statement of Defence the Defendants specifically deny:

a) that the Defendants negatively affected the plaintiff's eligibility for accident benefits entitlements; and

b) that the Defendants missed any limitations periods in relation to any accident benefit claims that the plaintiff was reasonably entitled to.

19In addition to these specific denials, the Amended Statement of Defence includes 17 paragraphs of pleaded material facts relating to the Defendants' representation of the Plaintiff in her accident benefits claim. These material facts include:

a) A description of the accident benefits that the Defendant applied for on behalf of the Plaintiff and what benefits were received.

b) A description of the various discussions between the defendants and the Plaintiff regarding the Plaintiff's instructions to proceed with a catastrophic impairment determination, including the steps taken by the Defendants to obtain an expert report on catastrophic impairment, the insurer's denial of the application for a catastrophic impairment assessment, the assessment on catastrophic impairment conducted by the insurer's expert, and the decision to commission a rebuttal report.

c) A description of the steps taken by the Defendants to obtain a future costs of care and income valuation reports and the discussions with the Plaintiff regarding those reports, including the plaintiff's agreement to assume the costs of those reports.

d) A description of the steps taken and the communications with the Plaintiff regarding the Plaintiff's decision to dispute the denial of income replacement benefits before the License Appeal Tribunal.

e) Descriptions of discussions the Defendants had with the Plaintiff regarding the limitations of the catastrophic impairment report received and the weaknesses in the plaintiff's claim for accident benefits, including that the damages suffered by the Plaintiff from the unexpected death of her son could be a hindrance to qualifying for such benefits.

f) Descriptions of the settlement negotiations with the accident benefits insurer and the Defendants' various communications with the Plaintiff about settlement offers made and received through the course of the defendants' engagement, including the Defendants' settlement recommendations that were refused by the Plaintiff which the Defendants plead ultimately resulted in a breakdown of the lawyer-client relationship and the Plaintiff's decision to retain a new lawyer for her accident benefits claim.

20The overarching theme of the Defendants' defence to the claims relating to their representation of the Plaintiff in respect of her accident benefits claim is that, based on the medical evidence and expert reports received, the Defendants had concerns about viability of the Plaintiff's accident benefits claims. The Defendants plead that they raised these concerns with the plaintiff on multiple occasions and recommended she consider settlement instead of continuing with a disputed claim, but that the Plaintiff elected to pursue her disputed claims contrary to that advice.

21The Amended Statement of Defence includes 12 paragraphs specifically responding to the Plaintiff's allegations relating to the Defendants' representation of the Plaintiff in the Tort claim. Similar to their defence in relation to the accident benefits claim, the Defendants plead that the settlement was not improvident because the Plaintiff could not have established tort liability for damages resulting from the motor vehicle accident and could not have met the statutory threshold with respect to injuries allegedly sustained.

22The Amended Statement of Defence also includes specific and detailed denials and allegations of material fact in response to a number of the allegations in the Statement of Claim relating to the alleged improvident settlement of the tort action:

a) The defendants plead that the mediation memorandum they prepared for the mediation included various income-related medical record and reports including the catastrophic impairment report of Omega Associates, the psychological report of Dr. Fiati and the chronic pain report of Dr. Robertus.

b) The defendants deny that the first offer made by the Defendants at mediation was made without the Plaintiff's instructions and plead that the Plaintiff provided her express instructions with respect to the first and all subsequent offers which were exchanged at the mediation.

c) The defendants specifically deny the allegations that they recommended that the plaintiff accept the $225,000 offer from the tort defendant at the mediation or that they characterized the offer as being "a reasonable and fair resolution to her claims." The Defendants plead that they specifically advised the plaintiff against accepting the Offer at the mediation, and suggested that they proceed to pre-trial.

d) The Defendants plead that they did, in fact, make a request to the tort defendant for an advance payment as instructed, that the request was rejected by the tort defendant and that the rejection was communicated to the Plaintiff on the same day.

e) According to the Statement of Defence, the ultimate settlement of the tort action was precipitated by the Plaintiff, who emailed the Defendants approximately two months after the mediation instructing the defendants to follow up with the tort defendant to see if "they are willing to settle my case once and for all" and advising that she "would like to get it over and done with". The defendants plead that on the same day the Plaintiff instructed the Defendants by phone to accept tort defendant's previous offer to settle for a $225,000 and subsequently confirmed those instructions by email.

The Parties' Positions

23The Plaintiff seeks to strike the following three paragraphs from the Amended Statement of Defence:

1. The defendants, Anthony Stephen Benjamin Law Professional Corporation ("Benjamin Law"), Anthony Stephen Benjamin ("Mr. Benjamin") and Oli Akinsanmi ("Ms. Akinsanmi"), (collectively the "defendants"), deny the allegations contained in the statement of claim, except where expressly admitted below.

2. The defendants specifically deny the allegations as set out in paragraphs 12, 13, 14, 15, 17, 19, 20, 21, 22, 23, 24, 25 and 26 of the statement of claim pertaining to the defendants' handling of the plaintiff's accident benefits claim.

3. The defendants specifically deny the allegation in paragraphs 43-49 of the statement of claim that they rendered an excessive statement of account.

24The Plaintiff submits that the blanket denials contained in these paragraphs are not supported (or are not sufficiently supported) by materials facts in the Amended Statement of Defence. The Plaintiff's position is that absent an accompanying pleading of material facts these blanket denials are contrary to Rule 25.06(1) and Rule 25.07(3) of the Rules of Civil Procedure:

Rules of Pleading — Applicable to all Pleadings

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. R.R.O. 1990, Reg. 194, r. 25.06 (1)

Rules of Pleading — Applicable to Defences

Different Version of Facts

25.07 (3) Where a party intends to prove a version of the facts different from that pleaded by the opposite party, a denial of the version so pleaded is not sufficient, but the party shall plead the party's own version of the facts in the defence. R.R.O. 1990, Reg. 194, r. 25.07 (3)

25The Plaintiff contends that as a result of its reliance on blanket denials unsupported by material facts, the Amended Statement of Defence largely fails to respond all of the allegations in the Statement of claim. The Plaintiff's motion record includes a 21-page chart listing all of the allegations in the statement of claim which the Plaintiff argues the Defendants have not properly responded to in the Statement of Defence.

26For example, the plaintiff points to paragraph 30 of the Statement of Claim which the Plaintiff says is only addressed in the Amended Statement of Defence by the blanket denial in paragraph 1 and the general denials of solicitor's negligence in paragraphs 6 and 7. Paragraph 30 of the Statement of Claim is almost a full page in length and relates to the Plaintiff's allegation that the Defendants were negligent in including past medical records in the Plaintiff's affidavit of documents in the tort litigation.

27The plaintiff submits that the defendants' blanket denial of negligence in relation to paragraph 30 of the Statement of Claim leaves the following allegations or issues unaddressed:

a) Did the Defendants include in the Affidavit of Documents an OHIP decoded list of services commencing September 9, 2009, as alleged in the statement of claim?

b) Did the Defendants include in the Affidavit of Documents the records of the Plaintiff's family physician dating from September 2004, as alleged in the Statement of Claim?

c) If the aforementioned records were included in the Affidavit of Documents, is it the Defendants position that production of same was warranted in the circumstances?

28The plaintiff makes a similar submission with respect to the defendant's denials of the allegations in paragraph 26 of the Statement of Claim. Paragraph 26 is almost three pages long and relates to the Plaintiff's allegation that the Defendant's failed to provide timely advice with respect to the plaintiff's ability to dispute the denial of certain accident benefits. For paragraph 26, the Plaintiff identifies 15 specific allegations or issues that the Plaintiff contends remain unaddressed by the Defendants' general denials.

29The Plaintiff's arguments amount to a submission that the Defendants are required by Rules 25.06(1) and 25.07(3) to plead material facts responsive to every allegation in the Statement of Claim that the Defendants deny. The Plaintiff submits that by denying allegations without pleading material facts specific to those allegations the defendants have improperly taken a "no, prove it" approach. The plaintiff argues that Rule 25.07(3) prohibits a "no, prove it" pleading in a Statement of Defence, and that bare denials without an accompanying pleading of material facts should be struck out. The Plaintiff relies heavily on the unreported decision in Sarta v. Mazo (12 November 2019), Toronto CV-18-608857 (Ont S.C.J.) in support of her interpretation of Rule 25.07(3). In Sarta, Master Suganasiri (as she then was) struck out blanket denials in what she held was a "no, prove it" statement of defence for failing to comply Rules 25.06 and 25.07(3).²

30The Plaintiff submits that a pleading's primary function is to clearly define the questions at issue between the parties, to provide fair notice of the precise case that the parties are to meet so as to avoid trial by ambush, and to assist the Court in their investigation of the truth of the allegations being made by the litigants. The Plaintiff argues that as a result of the blanket denials unsupported by material facts, the Amended Statement of Defence fails to adequately fulfil any of these functions. The Plaintiff seeks to have the offending paragraphs struck from the Amended Statement of Defence (with leave to amend) pursuant to Rule 25.11(a) on the grounds that the Amended Statement of Defence as it currently stands would prejudice or delay the fair trial of the action.

31The Defendants submit that the Amended Statement of Defence, when looked at in its entirety, fulsomely responds to the plaintiff's claims and pleads all material facts as reasonably necessary in accordance with the Rules. The Defendants emphasize that Rule 25.06(1) requires that every pleading contain a "concise" statement of material facts on which the party relies, "and not the evidence by which those facts are to be proved".

32The Defendants argue that it is the Statement of Claim that fails to comply with the Rules of pleading. They describe it as "an excessively long document which attempts to present evidence and argument as material fact". The Defendants contend that on this motion the Plaintiff is attempting to compel the Defendants to plead evidence in response to the evidence improperly pleaded by the Plaintiff within the Statement of Claim.

33The Defendants also disagree with the Plaintiff's interpretation of Rule 25.07(3) which they say would require them to "fact check" every allegation in the Statement of Claim in their Amended Statement of Defence, even the smallest details. They argue that such a requirement is unfair and would result in a statement of defence is no longer "concise".

34The Defendants describe their own pleading as a typical Statement of Defence in a solicitor's negligence action. They submit that their denials of negligence in respect of both the alleged improvident settlement of the tort action and their handling of the accident benefits claims are elaborated on and supported by pleadings of material fact that meet the level of material fact disclosure required by the Rules.

Relying on Toronto (City) v. MFP Financial Services Ltd., [2005] O.J. No. 3214 (ON SC) at para 15, they argue that pleadings motions should not be approached in an overly technical manner and that parties should be at liberty to craft pleadings in the manner they choose, providing that the Rules are not "violently offended," and there is no prejudice to the other side.

Analysis

35The primary purpose of pleadings is to set the framework for the litigation and the issues in dispute for the benefit of the parties and the court. Justice Brown described the function of pleadings in Rare Charitable Research Reserve v. Chaplin, 2009 CanLII 49639 (ON SC), para 9:

As has oft been said, pleadings in a civil proceeding perform several functions: (i) they define with clarity and precision the question in controversy between the parties and, in so doing, set the "foul lines" for the determination of issues of relevance; (ii) they give fair notice of the precise case to be met and the remedies sought, in order to prevent "trial by ambush"; and (iii) they assist the court in its investigation of the truth and the allegations made: National Trust v. Furbacher, [1994] O.J. No. 2385 (Gen. Div.), para. 9; Senechal v. Muskoka (District Municipality), [2003] O.J. No. 885 (S.C.J.), paras. 50 to 52.

36In performing these functions, pleadings must be "concise" as mandated by Rule 25.06(1). Courts have repeatedly emphasized the need for brevity in pleadings. As Justice Perrell summarized in Stedfasts Inc. v. Dynacare Laboratories, 2020 ONSC 8008, paras 29 and 32:

[29] Rule 25.06 (1) directs that 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. A pleading should be brief, clear, focused and contain the skeletal or core facts and not the evidence that details those facts unless particulars are required by the rules.

[32] A pleading shall contain material facts, but it should not contain the evidence by which those facts are to be proved. Pleadings of evidence may be struck out. 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

37Although Rule 25.07(3) is a rule of pleading that is specific to defences, it must be interpreted and applied in the context of the purpose and function of all pleadings as defined in Rule 25.06 and in the decisions of this court. The plaintiff's proposed interpretation and application of Rule 25.07(3) is inconsistent with this accepted law governing pleadings in general.

38The Plaintiff's interpretation of the Rule 25.07(3) would require a defendant to plead its own version of the facts for every denial of fact in the Statement of Defence, regardless of whether the fact denied is material and regardless of whether the defendant intends to rely on its own version of the facts in its defence. This interpretation is in conflict with the requirement that a pleading contain a concise statement of the material facts relied on by the party. Such a requirement would force a defendant to plead facts in a statement of defence that the defendant does not intend to rely on and does not believe are material to its defence. It would effectively impose a plaintiff's assessment of materiality on a defendant.

39The plaintiff's interpretation of Rule 25.07(3) is also inconsistent with the plain wording of the Rule itself, which is triggered only when the defendant "intends to prove a version of the facts different from that pleaded" in the statement of claim. In a civil action, the evidentiary burden is on the plaintiff to prove the elements of its cause of action. To be successful at trial, a defendant need only satisfy the court that the plaintiff has not met its burden. That may or may not require the defendant to prove a different version of the facts than that pleaded by the plaintiff. It certainly does not require the defendant to prove a different version of the facts for every fact pleaded by the plaintiff that the defendant denies.

40When viewed in the context of the burden on the defendant, Rule 25.07(3) operates as an exception to the normal pleading requirements for defendants. The mere denial of a fact pleaded will often be sufficient. This is consistent with the purpose and function of pleadings, which, per Chaplin (above), is to "define with clarity and precision the question in controversy between the parties". The plaintiff argues that an adequate pleading of material facts is essential to defining the dispute not only for trial but also for discoveries. While this is true, the material facts governing the issues in dispute in most cases are largely already laid out in the statement of claim.

41In many instances, an issue in dispute will be sufficiently defined for the purpose of discovery and trial by a pleading of a material fact in the statement of claim coupled with a denial of that material fact in the statement of defence. For example, a defendant in a motor vehicle accident case who denies the plaintiff's allegation that the defendant was driving more than 30 km/h over the speed limit, has sufficiently defined the issues for trial and discovery: What speed was the defendant driving? What was the speed limit? The defendant need not (and arguably should not) preemptively plead the answers to these questions in the statement of defence in order to define the issues. These details are evidence that should be addressed at discovery and trial.

42The forgoing does not mean that a defendant can simply deny all allegations in the statement of claim and avoid pleading any material facts in its statement of defence. Such a pleading would not comply with the basic requirements of 25.06 which requires a defendant to plead material facts sufficient to support its defence; see Pennyfeather v. Timminco Limited, 2011 ONSC 4257, para 50. The Sarta decision relied on by the plaintiff is distinguishable on this basis. The statement of defence in that case was only nine paragraphs long and pleaded "no material facts that establish the basis of the Defendant's defence"(at para. 4) Master Sugunasiri (as she then was) described the defendant's entire pleading as a "no, prove it" defence.

43While Sarta includes a finding of non-compliance with Rule 25.07(3), the decision to strike the blanket denials from the statement of defence appears to be based largely on the defendants' failure to comply with the basic requirements of pleading in accordance with Rule 25.06(1) and in particular with the requirement that the pleadings include sufficient material facts to define the issues. In granting the defendants leave to amend, Master Sugunasiri encouraged the defendants to follow Master McLeod's (as he the was) principle of pleading that "a reader of pleadings should be left in no doubt what the case is about and what the issues are that must be tried."(at para. 7).

44The Amended Statement of Defence in this case is not a "no, prove it" defence as contemplated in Sarta. As described above, the Defendants have pleaded material facts in response to the claims of negligence in their representation of the Plaintiff with respect to both the tort litigation and her accident benefits claims. In my view, the material facts pleaded by the Defendants are sufficient to support their defence to the Plaintiff's claims, including their defence to the claim relating to the alleged excessive fees given that such claim is based on the underlying allegations of negligence.

45I also find that Amended Statement of Defence, when read together with the Statement of Claim, sufficiently defines the issues in dispute between the parties for the purpose of both discovery and trial. A reader of these pleadings is left in no doubt what the case is about or what the issues are that must be tried. While the Amended Statement of Defence includes bare or blanket denials of certain facts or allegations in the Statement of Claim without a corresponding pleading of material fact, for the reasons given above, I find that neither Rule 25.07(3) nor 25.06 require the Defendants to plead material facts in respect of every, or even most, denials in their pleading.

46Accordingly, I find there is no basis to strike paragraphs 1, 21 or 49 from the Amended Statement of Defence. The Plaintiff's motion is dismissed.

47As noted above, the Defendants have argued that the Statement of Claim fails to comply with the rules of pleading in that it is not concise and, in many instances, pleads evidence as opposed to material facts. While I believe there is merit to the Defendants' submissions, the Defendants have not brought a motion to strike any part of the Statement of Claim and I do not need to determine that issue to determine the issues on this motion. Accordingly, I decline to make any finding as to whether the Statement of Claim improperly includes pleadings of evidence or is otherwise non-compliant with the rules of pleading.

Costs

48The Defendants have submitted a costs outline seeking $4,192.07 on a partial indemnity basis. This is approximately $1,000 less than the Plaintiff's partial indemnity costs as reflected in the Plaintiff's costs outline. The Defendants' costs request is therefor within the reasonable expectations of the parties. I award the Defendants partial indemnity costs of the motion in the amount of $4,192.07, inclusive of HST, payable by the Plaintiff within 30 days of the release of these reasons.

D. Michael Brown, Associate Judge

Footnotes

1. 1In her submissions, the Plaintiff also makes brief reference to Rule 25.07(4). However, that Rule applies to affirmative defences, which have not been pleaded by the Defendants in this case.
2. 2Master Suganasiri (as she then was) refers to "Rule 25.06(4)" as "requiring a defendant who has an alternative version of the facts to plead the alternative version and not rely on a blanket denial". Given the description of the Rule in the decision, I agree with Plaintiff's counsel that the reference to Rule 25.06(4) was a typographical error and Master Suganasiri meant to refer to Rule 25.07(3).