Simon's Megalomaniacal Legal Resources

Civil Litigation - Pleadings - Particularity

. Singh v Trump

In Singh v Trump (Ont CA, 2016) the Court of Appeal set out that a limitation defence must be expressly pleaded:

[130] The motions judge found that Mrs. Lee’s negligent misrepresentation claim was barred by the Limitations Act. He did so despite the fact that the defendants had not pled the Limitations Act and had not sought to amend their pleading to include such a plea. Although they raised the issue in oral submissions, the defendants had not raised it in the factum filed on the summary judgment motions.

[131] In his reasons the motions judge neither refers to the fact that it was not pleaded nor does he explain why, in the absence of such a plea, he should nonetheless invoke the Act.

[132] This court has consistently held that “[t]he expiry of a limitation period is a defence to an action that must be pleaded in a statement of defence”: Collins v. Cortez, 2014 ONCA 685 (CanLII), [2014] O.J. No. 4753, at para. 10, per van Rensburg J.A. (citing S. (W.E.) v. P. (M.M.) (2000), 2000 CanLII 16831 (ON CA), 50 O.R. (3d) 70 (C.A.), at paras. 37-38, leave to appeal to S.C.C. refused, [2001] 149 O.A.C. 397). This requirement is embodied in rule 25.07(4) of the Rules of Civil Procedure, which Ontario courts have consistently held “applies to pleadings relating to limitations that might bar an action”: S. (W.E.) v. P. (M.M.), at para. 37. Rule 25.07(4) provides as follows:

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.

[133] Justice Cronk explained the rationale behind the requirement that a party specifically plead a limitation period defence in Hav-A-Kar Leasing Ltd. v. Vekselshtein, 2012 ONCA 826 (CanLII), 225 A.C.W.S. (3d) 237, at para. 69:

The failure to raise substantive responses to a plaintiff's claims until trial or, worse, until the close of trial, is contrary to the spirit and requirements of the Rules of Civil Procedure and the goal of fair contest that underlies those Rules. Such a failure also undermines the important principle that the parties to a civil lawsuit are entitled to have their differences resolved on the basis of the issues joined in the pleadings.

[134] In S. (W.E.) v. P. (M.M.), MacPherson J.A. confirmed that Ontario courts “have consistently held that rule 25.07(4) applies to pleadings relating to limitations that might bar an action”: at para. 37. He went on to explain that even though in that case the trial judge had given counsel time to prepare submissions on the issue after he raised it during closing arguments, it did not remove the potential prejudice to P:

If S had raised the issue in his pleadings, P 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 P 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 (at para. 38).

[135] MacPherson J.A. also noted that at no time during trial, including during closing arguments when the trial judge raised the limitation issue, did S seek to amend his pleadings. Nor did he seek such an amendment during the appeal hearing.

[136] In my view, the defendants’ failure, in this case, to plead a Limitations Act defence or even to seek an amendment to their pleading to do so is, as it was in S. (W.E.) v. P. (M.M.), fatal.

. Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada)

In Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada) (Ont CA, 2017) the court stated this with respect to the particularity of pleadings required in a malfeasance in public office claim, and otherwise in pleadings, where the plaintiff may not know the identities of all persons involved in the causation of their damages at the Claim-drafting stage:

[88] This court’s decision in Granite Power Corp. v. Ontario (2004), 2004 CanLII 44786 (ON CA), 72 O.R. (3d) 194 (C.A.), leave to appeal refused, [2004] S.C.C.A No. 409, supports the argument that the failure to name specific people within an organization may not necessarily result in a misfeasance claim being struck. In Granite Power, it was simply pleaded that the “Minister and/or his offices and staff” had acted with misfeasance. This court concluded the claim should not be struck even though it suffered from “a lack of clarity and precision”: para. 34. This court held that there existed “a narrow window of opportunity for Granite to make out its claim of misfeasance” and that “[r]egardless of how difficult it may be to establish, Granite should not be ‘driven from the judgment seat’ at that juncture of the proceeding": paras. 40, 42.

[89] Cases such as the following reflect an acknowledgment that, at the outset of litigation, a plaintiff may not be privy to information about the internal workings of an organization and which particular individual or individuals within an organization may have taken or failed to take a particular action: Capital Solar Power Corp. v. Ontario Power Authority, 2015 ONSC 2116 (CanLII), at paras. 13-14; Swift Current (City) v. Saskatchewan Power Corp., 2007 SKCA 27 (CanLII), 293 Sask. R. 6, at para. 29; and Georgian Glen Development Ltd. v. Barrie (City) (2005), 13 M.P.L.R. (4th) 194 (Ont. S.C.), at para. 11.

. Midland Resources Holding Limited v. Shtaif

In Midland Resources Holding Limited v. Shtaif (Ont CA, 2017) the Court of Appeal considered the particularity of pleadings required to allege fraud:

[198] First, precision and particularity are necessary when pleading fraud. Rule 25.06(8) of the Rules of Civil Procedure requires any pleading of fraud or misrepresentation to contain “full particulars”. In Hamilton v. 1214125 Ontario Ltd., 2009 ONCA 684 (CanLII), 84 R.P.R. (4th) 25, this court identified, at para. 35, the necessary elements for a plea of deceit:

The pleading, even of innocent misrepresentation, must set out with careful particularity the elements of the misrepresentation relied upon, that is:

1. the alleged misrepresentation itself,

2. when, where, how, by whom and to whom it was made,

3. its falsity,

4. the inducement,

5. the intention that the plaintiff should rely upon it,

6. the alteration by the plaintiff of his or her position relying on the misrepresentation,

7. the resulting loss or damage to the plaintiff.

Of course, if deceit is alleged, then there must also be an allegation that the defendant knew of the falsity of his statement…. Each of the defendants must know the case that it has to meet.

. Ceballos v. DCL International Inc.

In Ceballos v. DCL International Inc. (Ont CA, 2018) the Court of Appeal held that in order to support a claim in intentional tort, that pleadings must be particular:

[10] There is no question that, if sufficiently and adequately pleaded, allegations of conspiracy, fraudulent misrepresentation and other tortious conduct may form the basis of a reasonable cause of action against an officer or a director of a corporation: see, for example, 1175777 Ontario Ltd. v. Magna International Inc., 2001 CanLII 8529 (ON CA), [2001] O.J. No. 1621 (C.A.).

[11] However, to invoke those exceptions that permit the piercing of the corporate veil, the claim must be specifically pleaded. As Carthy J.A. said in ADGA Systems International Ltd. v. Valcom Ltd. (1999), 1999 CanLII 1527 (ON CA), 43 O.R. (3d) 101 (C.A.), at para. 39:

The operative portion of this paragraph is the final sentence which confirms that, where properly pleaded, officers or employees can be liable for tortious conduct even when acting in the course of duty. [Emphasis added.]<\blockquote>[12] Bald or vague assertions of intentional tortious conduct are insufficient to defeat a r. 21 motion. The pleading of intentional torts must meet a stringent standard of particularity, that is, they must be pleaded with “clarity and precision”: Lysko v. Braley (2006), 2006 CanLII 11846 (ON CA), 79 O.R. (3d) 721 (C.A.), at para. 144.