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.