What Should a Court Do With a Document Containing Scandalous Statements?

Statements Within a Legal Document Must Be Germane to the Issues Within the Proceeding or Such a Statement Should Be Struck and the Document Possibly Expunged.

A Helpful Guide For How to Determine When a Pleading or Affidavit Is Improperly Scandalous or Frivolous or Vexatious

Lawsuit Document Containing Scandalous Pleadings The documents and forms issued, submitted, or filed, within a legal proceeding must contain statements that are germane to the proceeding. If extraneous details are included, whereas such details are unnecessary or irrelevant or potentially embarrassing without going to the merits of the case, such statements may be struck out or the entire document expunged.

The Law

Procedural rules that govern the process and conduct within a legal forum will commonly include directions regarding the manner in which detail should be provided, or limited, within the documents and forms applicable to the legal proceedings of that forum.  For example, within Superior Court matters, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 apply and within are rules that directly address scandalous and improper pleading documents.  Similarly, for Small Claims Court matters, the Rules of the Small Claims Court, O. Reg. 258/98 apply to improperly prepared pleading documents.  Respectively, the rules of each are:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a)  may prejudice or delay the fair trial of the action;

(b)  is scandalous, frivolous or vexatious; or

(c)  is an abuse of the process of the court.

12.02 (1) The court may, on motion, strike out or amend all or part of any document that,

(a) discloses no reasonable cause of action or defence;

(b) may delay or make it difficult to have a fair trial; or

(c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.

(2) In connection with an order striking out or amending a document under subrule (1), the court may do one or more of the following:

1. In the case of a claim, order that the action be stayed or dismissed.

2. In the case of a defence, strike out the defence and grant judgment.

2.1 In the case of a motion, order that the motion be stayed or dismissed.

3. Impose such terms as are just.

Additionally, general rules applicable to all legal concerns will also apply.  In determining whether a statement within a pleading (or other document) is scandalous or improper, a court will review the purpose of the document, the nature of the allegations, and whether the allegedly offending statement is relevant, necessary, and therefore germane, to the allegations.  If a statement is irrelevant, unnecessary, and therefore without need, especially where the statement may be prejudicial to the proceedings by providing details that could only cause bias, the statement, and perhaps the entire document, should be struck.

As an example, in the case of Wolker v. Ogilvie Realty Ltd., 2006 CanLII 2627, where the Plaintiff was suing a property owner for injuries suffered from a slip and fall on an icy parking lot, the Defendant included statements within the defence pleading that were deemed unnecessary and scandalous.  In the Wolker case, the slip and fall occurred while the Plaintiff was walking on the parking lot of a commercial plaza for the purpose of attending an adult novelty store.  On a Motion to strike out the references to the adult store as the destination of the Plaintiff, the court said:

[1]  The Plaintiffs seek an order striking the references to Classixxx Adult Store (Classixxx) in the Statement of Defence and Counterclaim (the Statement of Defence) of Ogilvie Realty Ltd. (the Defendant).

[2]  This is a personal injury action in which the Plaintiffs claim damages as a result of a slip and fall incident in the parking area of a strip mall owned by the Defendant. A jury notice has been served.

[3]  The Statement of Defence makes reference to one store on its property, that of Classixxx. In paragraph five thereof the Defendant refers to the area “near the Classixxx Adult Store” where the Plaintiff alleges the incident took place.  The other reference to Classixxx is in Paragraph 11 of the Statement of Defence states:

The plaintiff Fred Wolker had attended the Classixxx Adult Store at 130 Robertson Road many times over several years, and was familiar with the layout of the parking lot and surrounding area. He had navigated the parking lot in question by foot multiple times over several years, in many different weather conditions.

[4]  This motion is brought pursuant to rule 25.11 of the Rules of Civil Procedure which provides that the Court may strike out or expunge a part of a pleading which may prejudice or delay the fair trial of the action or is scandalous, frivolous or vexatious or is an abuse of the process.

[5]  The position of the Plaintiff is that the reference to Classixxx is scandalous, is immaterial and irrelevant to the action, is inserted for colour and to embarrass the Plaintiff and that the order sought would have no detrimental effect on the Defendant’s ability to argue its case.

[6]  The position of the Defendant is that the reference to the Classixxx store is reasonable and necessary to locate where the slip and fall incident took place.  It submits that the identity of the Classixxx Store serves to identify where the Plaintiff slipped and fell.  It also submits that the fact of previous visits to the Classixxx Store sets out the alternative defence of contributory negligence on the basis of the Plaintiff’s familiarity with that area of the parking lot where he fell.

[7]  I conclude that the order should be granted.

[8]  In Re Paul and Paul (1980), 1980 CanLII 1838 (ON SC), 28 O.R. (2d) 78 the Court referred to the statement in Holmested & Gale, Judicature Act of Ontario and Rules of Practice (1969), vol. 2, p.1125, para. 5 which stated:

Scandal is indecent or offensive matters or allegations made for the purpose of abusing or prejudicing the opposite party…

[9]  The Court in that case stated at page 3:

In my opinion, allegations, whether contained in a pleading or an affidavit, that are irrelevant or tend to prejudice, embarrass or delay the fair trial of the issue, should be expunged…

[10]  In my view, the actual identity of the store is not relevant to the issues before this Court. The location of the slip and fall incident can be readily established without reference to the Classixxx Store.  Further, evidence as to any familiarity of the Plaintiff with the area can be readily established without the specific reference to the name of the store.  I therefore conclude that striking the references to the Classixxx Adult Store would have no detrimental effect on the defence.

[11]  A jury notice has been served.  The actual identity of the Classixxx Store has little or no probative value with respect to the issues before the Court.  I conclude that that the value of any such reference is significantly outweighed by the possible prejudicial effect of such evidence on the jury and it is therefore reasonable that these references be struck.

As stated in Wolker at paragraph nine, the court ruled that, "... allegations, whether contained in a pleading or an affidavit, that are irrelevant or tend to prejudice, embarrass or delay the fair trial of the issue, should be expunged ...".  Accordingly, extraneous details within either a pleading or Affidavit should be struck or even expunged from the court file altogether.  This principle was also stated in the case of Carty v. Canada (Attorney General)2007 CanLII 52784 where it was said:

[19]  A pleading is not designed for dialectic or personal reflection, and its focus should be on the material facts for a claim or defence. A pleading is not a diary or a blog for commentary. A pleading that is bereft of material facts and inserted just for colour and argumentation may be struck out as scandalous: George v. Harris, [2000] O.J. No. 1762 (S.C.J.). Pleadings that are irrelevant, argumentative, or inserted only for color or that constitute bare unfounded allegations should be struck out as scandalous: Senechal v. Muskoka (District Municipality), [2003] O.J. No. 885 (S.C.J.). 

Further explanation of what constitutes as a scandalous, frivolous, or vexatious document or statement within a document was provided in the case of Noel v. Johnson et al, 2019 ONSC 7366, while citing George v. Harris, [2000] O.J. No. 1762 as was also cited in Carty above, and wherein it was explained:

[24]  The application of Rule 25.11 was considered by Epstein J. in George v. Harris [2000] OJ No 1762, 97 ACWS (3d) 225; 2000 CarswellOnt 1714. There her Honour stated as follows:

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. … 

Summary Comment

Court documents, such as pleadings and affidavits, should contain only information that is germane to the legal proceeding in which the documents are issued or filed.  Where court documents contain extraneous details that are scandalous, frivolous, or vexatious, being irrelevant or unnecessary and merely intended to embarrass a party or witness to the proceeding, and potentially cause bias or prejudice, the offending statements, or the entire document, should be struck and possibly expunged from the court record.


Jorge Andres Steinmetz. B. A.. Licensed Paralegal provides affordable services for clients located in Mississauga, Aurora, Orangeville, Newmarket, Toronto, among other places!
Get a FREE ½ HOUR CONSULTATION

Do You Have a Case? Let's Get Started Today

ATTENTION: Do not send any confidential information through this website form.  Use this website form only for making an introduction.

For more information, fill out the form below to send a direct inquiry to Jorge Andres Steinmetz. B. A.. Licensed Paralegal

ATTENTION: Confidential details about your case must not be sent through this website.  Use of this website does not establish a legal-representative/client relationship.  Do not include confidential details about your case by email or phone.  Use this website only for an introduction with a Jorge Andres Steinmetz. B. A.. Licensed Paralegal representative.
Jorge Andres Steinmetz. B. A.. Licensed Paralegal

P: (416) 716-2032
E: legalont@gmail.com

Hours of Business:

8:30AM – 4:30PM
8:30AM – 4:30PM
8:30AM – 4:30PM
8:30AM – 4:30PM
8:30AM – 4:30PM
Monday:
Tuesday:
Wednesday:
Thursday:
Friday:

By appointment only.  Please call for details.







Serving:

Mississauga
Richmond Hill
Newmarket
Vaughan
Orangeville


Burlington
Hamilton
Thornhill
Brampton
and much more

Jorge Andres Steinmetz, B.A.

SSL Secured
Trust https://thecourtagent.ca


Animated Spinner