What Exactly are you Alleging? Demand For Particulars

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In Ontario, rules of pleadings require parties to allege concise statement of facts in their pleadings. Often times, parties fail to do so for various reasons. In such circumstances, the opposing party can demand particulars, so it can properly respond to the allegations.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

Sometimes you receive pleadings from the other party which contain certain allegations that you’re not really clear about—you don’t quite understand exactly what the other side is alleging.  Since you don’t understand what is being alleged, it is very hard for you to respond to it.  In those circumstances you can actually ask the other side to provide particulars.  How do you go about doing that?  We will explain that in this lecture. 

We begin with our usual disclaimer that this course and lecture is not legal advice.  It is only for educational purposes.  If you have any specific questions about your case you should contact a lawyer or a paralegal or contact the Law Society of Ontario for a referral.

We’ll begin with a basic Rule of all pleadings which is contained in Rule 25.06 (1), which essentially says that the pleadings—whether it’s claimed, defense or reply or cross claim should contain a concise statement of the material facts.  Let me take you to the Rule that we can follow: Rule 25.06.  By the way if you’re drafting pleadings it is very important for you to review this rule in detail because it applies to what kind of content you can provide in your pleadings.  Rule 25.06(1):

“Every claim 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”

We’ll talk about the Rules of pleading in a separate lecture.  For today’s lecture we are focused on a concise statement of material facts.  When you are drafting a pleading you have to specify each fact that you’re relying on to support your case.  A lot of times you get pleadings that contain allegations which are bald or vague allegations and they are considered improper pleadings and problematic.  If you are faced with allegations that are improper or bald allegations then how do you deal with those allegations?  How do you respond to those?

Let’s take an example of a bald allegation and then we will explain how to deal with that specific allegation.  In an employment law context, let’s say that one fact in the statement of claim alleges that “in the last two years the plaintiff’s manager frequently harassed him”

There are three things that I have underlined: (1) two years—it happened in the last two years and the plaintiff’s manager (2) frequently—how do you define frequently? How many times did it occur? When did it occur exactly?  (3) Harassed the plaintiff—what did the manager exactly do?  This is a very broad, vague allegation and if you’re faced with this allegation you actually don’t need to respond to it because you don’t know the particulars of this allegation.

How do you respond to a bald allegation? I could suggest two ways.  There could be three ways or more but the two ways that I can suggest are:

(1) that you basically ignore the allegation. How do you ignore it? You respond in your defence or reply or whatever documents you are preparing something to this effect (you don’t need to copy it exactly) that “…the plaintiff has failed to provide the particulars in paragraph so-and-so  (they have not provided i.e., the plaintiff has not provided it), … in the absence of which the defendant is unable to plead over…”.  You’re basically saying to the court because I don’t know what the allegation is, I’m unable to respond to it.  And if the plaintiff provides me with the specific allegation, I will respond to it.  This is sort of a broad response to a broad allegation.

There is a sweeping statement that says the manager has harassed the plaintiff, in the last two years, frequently.  Your response is that’s not correct. We deny the allegation but we are unable to “plead over” because we don’t know the specifics of that allegation.  Or, (2) the second thing you can do is that you can demand particulars

Before preparing / drafting or serving your responding pleading, you can ask the plaintiff in this case or the other party whose pleadings are that “I want you to provide me the particulars of this allegation because once you provide me the particulars of this allegation then I will be able to respond to it”.  You can ask for it and demand for particulars is dealt with in Rule 25.10.  If we scroll down to Rule 25.10, there you go:

where a party demands particulars of an allegation in the pleading of an opposite party and the opposite party fails to supply them within seven days the court may order particulars to be delivered within a specified time”.

When you serve a demand for particulars then the other party has seven days to provide you the particulars.  If they don’t provide you the particulars, you can bring a motion in the court and get a court order to compel the other side to provide you the particulars.  You can also bring a motion to strike.  If the allegation is vague and it does not contain any specific allegations, you may ask the court to strike that allegation outright if the other party is not providing the particulars.  You can demand for particulars in this instance. 

What would you do? You will prepare a document called the Demand for Particulars.  That will be the heading and you can say something to this effect “provide the date and time of each alleged instance of harassment in the last two years”.  This is important – you want to know each instance that the plaintiff is relying on in support of the allegation of harassment. 

If you are aware of each instance or allegation of harassment then you can respond to it. You can say on such and such date when the plaintiff is alleging that the manager harassed the plaintiff the manager was on vacation—for example.  Or the manager did not do it or whatever the issue was – whatever the fact that you may rely on in response to that.  You can also say provide me the particulars of the alleged acts of harassment.  What exactly did the manager do? Because when the plaintiff is using the word that the manager harassed the plaintiff, these are words of judgment.  This is something that the court is going to determine based on the very specific act that the plaintiff is alleging.  What exactly did the manager do?  If the manager only asked the employee or the plaintiff to complete his or her work within the deadline that has been assigned to him or her that may not amount to harassment. 

But at the same time if the manager used an F word in correspondence with the employee, that may amount to harassment.  Exactly what happened?  What was the instance? What was the alleged act?  If you’re responding to it, you are entitled to know that.  Then you provide your position. 

Why this discussion is important? – because in our everyday life whether it’s politics or media or our social life it is not uncommon that we make these sweeping statements about something or about someone.  That person does this all the time or this has been happening to me all the time or frequently and we make these judgments.  In a court of law that is not acceptable.  You will have to provide every single fact on which you are relying on and then you will have to prove your fact. 

An analogy for building a case in court and demonstrating the merits of your case could be like building a house.  Imagine that each fact is a brick that has to go in the wall.  You have to clearly present each fact on its’ own.  You have to provide the evidence to prove that fact.  Once that fact is proven it goes in the wall.  If you’re not able to prove a fact, then it wouldn’t go in the wall.  That’s how on a brick by brick basis, on a fact by fact basis, you’re hoping to construct a case that demonstrates that you are entitled to the remedy that you’re seeking from the court. 

That’s why it is important when you are drafting pleadings to be clear and concise and sometimes to be vague—if that is a strategy that you need to adopt in your particular pleadings.  I have oftentimes drafted pleadings that have contained vague and bald statements.  They serve a particular purpose.  It’s all part of a larger strategy.  Sometimes you want to create a narrative based on all these bald allegations even though the very material or two allegations are few within your pleadings but sometimes that’s a strategy that you want to adopt and if you are faced with a similar strategy you want to be capable of understanding what the other side is doing to you and then defend yourself properly.

In conclusion what I want you to understand is that this demand for particulars is an important tool in your fight in a court action.  Why? Because it allows a party / it allows you to understand clearly the allegations that you have to defend.  Because if the allegations are not clear it will be hard for you to defend yourself and you don’t want to be defending yourself on bald and vague allegations. 

The other thing it does is it restricts the other party from creating an unfavorable narrative based on unspecified allegations.  The other party may use this as I said earlier to create a narrative—repeated words—constantly, every single paragraph, the party is repeating that the manager has been harassing and the manager has been harassing other people.  That may not even be a relevant pleading.  The manager did that in the previous job.  

All of these things may not be the material facts that the party could rely on in a court action.  With respect to the specifics if you don’t ask for it you may unwittingly, not recognizing that the other side is actually creating a narrative against you, which they are not allowed to do based on the Rules of pleadings.  You can challenge that.  Once you demand for particulars you force the other party to limit its case to specific allegations.  That’s what the case is going to be fought on—the very specific allegations that are being made (that you are making in your pleadings).  The court needs to determine whether those factual allegations are true and in the end whether those allegations support legally the case that you are pleading before the court.

Hopefully, this explains to you how to effectively use demand for particulars and how to respond to those. Thank-you for watching and I look forward to seeing you in the next lecture.

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