Sufficiency of the Pleadings

Oniel v. Marks, 2001 CanLII 24091 (ON CA)

[87] In summary, the failure to plead something as important, and I might add, as obvious, as a claim grounded in conventional negligence law is fatal to the appellant in this case. In Kalkinis (Litigation Guardian of) v. Allstate Insurance Co. of Canada (1998), 1998 CanLII 6879 (ON CA), 41 O.R. (3d) 528 at 533-34 (C.A.), Finlayson J.A. said:

It has long been established that the parties to a legal suit are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings: see rule 25.06. The trial judge cannot make a finding of liability and award damages against a defendant on a basis that was not pleaded in the statement of claim because it deprives the defendant of the opportunity to address that issue in the evidence at trial.

[88] The principle articulated by Finlayson J.A. in Kalkinis has been consistently applied by this court in several recent decisions: see, for example, Vanek v. Great Atlantic or Pacific Co. of Canada (1999), 1999 CanLII 2863 (ON CA), 48 O.R. (3d) 228; Immocreek Corp. v. Pretiosa Enterprises Ltd. (2000), 2000 CanLII 14728 (ON CA), 186 D.L.R. (4th) 36; and Strong v. Paquet Estate (2000), 2000 CanLII 16831 (ON CA), 50 O.R. (3d) 70. In my view, the principle should be applied again in the present appeal. Put simply, it was not until after the jury had given its verdict and in the course of argument on the Charter claim that the appellant attempted to assert a claim grounded in conventional negligence law. To entertain the claim in negligence at that stage would plainly have deprived the respondents of the opportunity to address important aspects of the issue in the evidence at trial. In particular, no evidence was led as to the requisite standard of care, a central element of the tort of negligent investigation. It was simply too late in the process for the appellant to add another claim after all the evidence had been heard and after the jury had given its verdict.

Strong v. Kisbee (Estate Trustee), 2000 CanLII 16831 (ON CA)

[32] The issue of the Limitations Act was a live one at the trial. Paquet pleaded in her statement of defence that Strong's action against her was barred by s. 45(1)(i) of the Limitations Act. The trial judge dealt fully with this issue in his judgment. It appears that during closing arguments the trial judge raised the question whether Paquet's counterclaim might be barred by s. 45(1)(j) of the Limitations Act. Counsel were given time to prepare submissions on this issue and, in the result, the trial judge decided that Paquet's counterclaim was barred. In his reasons on this issue, the trial judge dealt only with whether a counterclaim was covered by the word "action" in s. 45(1)(j).

[33] In her notice of cross-appeal, Paquet challenged the trial judge's decision on the counterclaim/action issue. However, her first ground of appeal was that Strong had not pleaded s. 45(1)(j) of the Limitations Act and that this failure was fatal to his, and the trial judge's, reliance on it. Unfortunately, although this argument was advanced before the trial judge, he did not address it in an otherwise comprehensive judgment.

[34] In my view, Paquet is entitled to succeed on this ground of appeal. There is nothing in Strong's pleadings about the Limitations Act. In Kalkinis (Litigation guardian of) v. Allstate Insurance Co. of Canada (1998), 1998 CanLII 6879 (ON CA), 41 O.R. (3d) 528 at (C.A.) p. 533, Finlayson J.A. said:

It has long been established that the parties to a legal suit are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings: see rule 25.06.

[35] The Rules of Civil Procedure, R.R.O. 1990, Reg. 194, are particularly specific about the pleading of affirmative defences. Rule 25.07(4) provides:

25.07(4) In a defence, a party shall plead any matter on which the party intends to rely to defeat the claim of the opposite party and which, if not specifically pleaded, might take the opposite party by surprise or raise an issue that has not been raised in the opposite party's pleading.

[36] The Ontario courts have consistently held that rule 25.07(4) applies to pleadings relating to limitations that might bar an action: see Pringle v. London (City) Police Force, [1997] O.J. No. 1834 (C.A.); D.S. Park Waldheim v. Epping (1995), 1995 CanLII 7091 (ON SC), 24 O.R. (3d) 83 (Gen. Div.); and B. (P.) v. B. (W.) (1992), 1992 CanLII 7666 (ON SC), 11 O.R. (3d) 161 (Gen. Div.). See also Mew, The Law of Limitations (Toronto: Butterworths, 1991), at p. 54.

[37] I see no reason for departing from these authorities in the present appeal. The fact that the trial judge gave counsel time to prepare submissions on the issue after he raised it during closing argument does not remove the potential prejudice to Paquet. If Strong had raised the issue in his pleadings, Paquet might have tried to settle, or even have abandoned, her counterclaim. Either decision might have had costs consequences. Another potential source of prejudice arises from the fact that counsel for Paquet might have adopted different tactics at trial. In particular, counsel might have called different or additional evidence to support an argument that the discoverability principle applied.

[38] Moreover, I note that Strong's claim against Paquet (defamation) and Paquet's claim against Strong (sexual assault) were essentially mirror images of each other. In such circumstances, the result reached by the trial judge, namely Strong's claim against Paquet was not statute-barred but Paquet's claim against Strong was statute-barred, is an anomalous and unsatisfactory result.

[39] Finally, I note that at no time during the trial, including during the closing arguments when the trial judge raised the limitation issue, did Strong seek to amend his pleadings. Nor, indeed, did he seek such an amendment during the appeal hearing.

[40] For these reasons, I would allow the cross-appeal on the pleadings issue. Fortunately, the trial judge considered the question of Paquet's damages in the event he was wrong in dismissing the cross-appeal. He assessed those damages at $100,000. I see no basis for interfering with that assessment.

Ball v. Metro Capital Management Inc., Re, 2002 CarswellOnt 8691 (SCDC)

9. We find that this Notice to Terminate a Tenancy Early served by the landlord to the appellant was seriously deficient in failing to provide the details about the reasons for the notice. The notice does not comply with the requirements of the Act and is therefore invalid. In reviewing the sufficiency of the details in a Form N5, it is necessary to consider the context of the notice

10.There are several purposes for requiring the landlord to provide the reasons and details:

The tenant needs to know the specific allegations against her in order to

1) be in a position to know the case that must be met;

2) to decide whether to dispute the allegations made against her before the Tribunal; or

3) to stop the conduct or activity or correct the omission within seven days and thereby void the notice.

...

12. Particulars should include dates and times of the alleged offensive conduct, together with a detailed description of the alleged conduct engaged in by the tenant.

13. In the circumstances of this case, according to the materials, there were problems in the building relating to hot water. Where a landlord alleges a tenant of "harrassing its employees", it is particularly important that the notice clearly sets out sufficient details for a tenant to be put on notice that the particular acts complained of are alleged by the landlord to be "acts of harrassment" as compared to legitimate inquiries of a "rightfully assertive tenant".

14. The Member of the Tribunal erred in failing to find that the Notice served on the Tenant was invalid for lacking in the required details