What Is a Frivolous Statement Within a Court Document?

Where Statements Are Irrelevant, Unnecessary, or Tend to Embarrass a Party or Witness and Could Cause Bias, Such a Statement Should Be Struck and the Document Possibly Expunged.

Understanding When Scandalous or Frivolous or Vexatious Court Documents Should Be Struck From the Record

Lawsuit Document Containing Scandalous Pleadings The various forms and documents used within court proceedings or other legal processes must contain details that are limited to information relevant to the merits of matter without including unnecessary or embarrassing details. Where irrelevant or unnecessary information is included the offending details may be struck out or the entire document may be struck out.

The Law

The rules of procedure governing the process of a legal forum will embody specific instruction regarding the extent of detail required within the documents of that forum.  For Superior Court proceedings, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 address scandalous and improper pleadings.  For Small Claims Court proceedings, the Rules of the Small Claims Court, O. Reg. 258/98 address improper pleadings.  The specific rules 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.

Furthermore, there are general rules that apply to all legal concerns.  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. … 

Additional Case Reference

For more information about scandalous, frivolous, or vexatious, documents, see these other cases:

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.

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Documents as Scandalous or Frivolous or Vexatious

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