In order to disclose a cause of action, a notice of civil claim must not simply name that cause of action, but also set out the elements of that cause of action.
Rule 3-1(2)(a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, provides that a notice of civil claim must set out the material facts in support of a claim.
Material facts are the means by which the claimant will prove the elements of the cause of action and thus are “comprised of every fact that would be necessary for the plaintiff to prove in order to support their claim” and in so doing, are integral to pleadings meeting their role of providing notice and defining the issues to be tried: Attorney General v Frazier 2022 BCCA 379 at paras. 69-70, citing Mancuso v. Canada (Minister of National Health and Welfare), 2015 FCA 227 at paras. 16–20; Workers Compensation Board v. Sort, 2022 BCCA 318 at para. 102; Mercantile Office Systems Private Ltd. v. Worldwide Warranty Life Services Inc., 2021 BCCA 362 at paras. 21-23; and Kindylides v. Does, 2020 BCCA 330 at para. 34.
At para. 71 of Frazier, the Court of Appeal also made clear that bare allegations based on speculation and assumptions are not material facts, citing Kindylides at para. 33.
In Imperial Tobacco at para. 22, the Supreme Court of Canada stressed the importance of pleading material facts with the now often cited phrase “plead them they must”, explaining that while a claimant may not be able to prove facts at the time they are pled, the claimant must plead them nonetheless. It is not open to the claimant to wait and see how the evidence develops before pleading material facts.
The distinction between evidence and material facts is emphasized in the Supreme Court Civil Rules which require material facts be pled (R. 3 1(2)) while prohibiting pleading evidence (R. 3 7(1)). Material facts are the who, when, where, how and what that gives rise to liability: Frazier at para. 70, while evidence is the means by which the material facts will be proved.
In Frazier at paras. 72 and 75, the Court of Appeal explained that where material facts are not pleaded, an application to strike may be allowed because the claim is not capable of supporting a cause of action and the court cannot properly evaluate whether there is a chance of success. T