Un-Pleaded Issues at Trial

Thomas v MDG Newmarket Inc., 2017 CanLII 67311 (ON SCSM)

• In my view the fundamental flaw with the moving party’s position is that he effectively asks the court to hold the plaintiff’s claim to the standards which apply under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. It is well-established that in Small Claims Court, given the incidence of self-represented parties, the rules of pleading are to be applied flexibly - even to the point that absent real prejudice, unpleaded issues may be decided at trial: 936464 Ontario Ltd. v. Mungo Bear Ltd. (2003), 2003 CanLII 72356 (ON SCDC), 74 O.R. (3d) 45 (Div. Ct.). That being so, applying the law of pleadings from the Superior Court of Justice to pleadings motions in this court is problematic at best.