Columns/Blogs Legal
Caution needed regarding excessive demands for particulars

In litigation, it is important that sufficient information and particulars are provided such that a party knows the case being made against it and is able to properly respond to the allegations.

If the particulars provided in the pleadings are believed to be insufficient, a party may demand particulars and then bring a motion for such if the other party does not respond to the initial demand.

However, as demonstrated in Certified Equipment Sales v Iuorio, 2024 ONSC 2948, a Court will not grant such a motion if the moving party is demanding an unreasonable level of detail in their request for particulars.

Background

An employer brought an action against a former employee claiming failure to repay a loan. The employee then filed a defence and brought a counterclaim alleging sexual harassment, violations of her human rights, and intentional infliction of mental suffering during her employment.

The employer made demands for particulars regarding 35 different paragraphs of the employee’s pleadings, seeking clarification on 120 different issues. The employee fulfilled one of those demands. The employer brought a motion requesting responses for the remaining demands.

The Court’s decision

The Court provided information regarding the legal principles surrounding particulars, citing case law that clarified the limited circumstances in which particulars may be ordered by the court (where the particulars are not within the knowledge of the party demanding them and where they are necessary to enable a party to plead). Further case law was cited that noted that the purposes of ordering particulars are to define the issues, prevent surprises, and enable parties to prepare for trial.

Additional case law was cited that provided guidance regarding the limits of particulars. For example, it would not be necessary to plead timing down to the exact minutiae, the specific manner of every act, or the exact words used.

Accordingly, the Court found that the demands of the employer in the case at hand were unreasonable in the level of detail being requested or were regarding allegations that should be within the employer’s knowledge.

For example, the employer requested particulars regarding how, when, and where the employer had allegedly monitored the employee’s off-duty conduct, claiming that he was unable to admit or deny the allegation of monitoring the employee without further particulars. The Court stated that it was “ridiculous” that the employer could not admit or deny the allegation of monitoring the employee without further particulars, noting that the employer had not demonstrated that such information was not within his knowledge.

As another example, the employee provided a response to one of the employer’s demands for particulars, but the employer remained unsatisfied. However, the Court clarified that pleadings and the response for particulars should not be assessed sentence by sentence but considered as a whole. As such, details provided elsewhere in the pleading may provide sufficient particulars for specific allegations – even if they are not to the level of detail or specificity that the other party desires.

The Court noted that the information being requested by the employer was more suited to be requested during the discovery process.

Subsequently, the Court dismissed the motion for particulars.

Further, due to the conduct of the employer’s counsel, the Court found that the employee was entitled to costs on an elevated basis.

The employer’s counsel had sought substantial indemnity for costs based on their objections to certain questions asked during the cross-examination of the employer leading up to the motion – questions that implied the employer’s motive for bringing the motion was to harass the employee. The Court stated that, in this situation, it was the rare case in which such line of questioning was not unfounded and the Court itself had similar concerns about the employer’s motive based on the employer’s materials. As such, the questions regarding the employer’s motive for the motion were not improper.

As a result, the Court found that the employer’s counsel had made unfounded allegations of impropriety against the employee’s counsel and had improperly frustrated the cross-examination of the employer. Accordingly, the Court awarded costs on an elevated basis to the employee.

Key takeaway(s) for employers

This case highlights the importance of being reasonable in making demands for particulars and in not requesting information to an excessive level of specificity. Certain questions about details are best reserved for the discovery process.

Further, the case also highlights that a Court is unlikely to entertain assertions that a party cannot deny or admit an allegation when it is clear that the party has sufficient knowledge to make such admittance or denial.

Finally, this case is also a warning that a party may have elevated costs awarded against it if it makes excessive demands for particulars and engages in improper conduct in the process.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.