Prejudicial effect vs probative value not a consideration at pleadings stage

Pleadings motions seldom succeed. In general great latitude is given to parties in preparing pleadings.

Today's Court of Appeal decision in Quizno's Canada Restaurant Corporation v. Kileel Developments Ltd., 2008 ONCA 644 makes clear that there is virtually no filter on pleadings to see if the allegations are prejudicial and require inadmissible evidence. Put otherwise, the exclusion of evidence whose prejudicial effect outweighs its probative value does not impact at the pleadings stage.

The Court holds:

[29]          Whether the various allegations that are attacked prevail at trial is not the point.  Respectfully, it is simply a palpable and overriding error to find that the allegations in the impugned paragraphs in the statement of defence were of little probative value, much less of marginal probative value, and prejudicial.  A plaintiff cannot claim to be prejudiced when the defendant's allegations are directly responsive to allegations made in its statement of claim.

[30]          Although the motion judge purported to apply the prejudice vs. probative value test articulated in Asper she misconstrued that test – and the limited circumstances in which it should be applied – in my view, and instead applied a test that calls upon the court to decide whether material and relevant allegations pleaded may nonetheless be struck because it is "not necessary" to plead them in order to "raise a reasonable defence".  This constituted an error in principle.
James Morton
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