When businesses choose a lawyer, they often focus on factors like experience, reputation, or cost. While these factors all certainly matter, a recent decision from the Federal Court highlights the importance of precision in legal drafting, where small decisions can make a significant difference.
In Solucore Inc. v. KJA Consultants Inc., 2026 CanLII 62325 (FC), Associate Judge Horne offered an important reminder about the consequences of using broad language such as “including”, “including without limitation” or “includes but is not limited to” in court pleadings.
These expressions are often intended to preserve flexibility by suggesting that additional facts or documents may exist beyond those specifically listed. However, the Court emphasized that this type of language does not relieve a party of its obligation to plead all of the material facts it intends to rely upon.
As Associate Judge Horne observed:
“Words like ‘including without limitation’ are magnets for a demand for particulars.”
A demand for particulars is a procedural tool used in litigation to require the opposing party to provide additional details about the facts supporting its claims or defences.
This decision reaffirms the principle that proper drafting is for parties to “plant a flag and clearly state what they do know” and not to rely on catch-all language that leaves the opposing party guessing.
Small drafting decisions like this can have significant consequences, affecting litigation strategy, costs, timelines, and potentially even the outcome of a case.
When selecting legal counsel, businesses should look for lawyers who appreciate these nuances and understand how strategic drafting can strengthen a case from the very beginning.
If you would like to discuss a potential litigation matter with this strategic thinking in mind, please reach out to me.
Ariel Dorfman, Associate Lawyer