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Fairness - Decided on Unpled Issues. Foodies Curry & Shawarma Inc. v. Royal Paan Leasing Ltd.
In Foodies Curry & Shawarma Inc. v. Royal Paan Leasing Ltd. (Ont CA, 2026) the Ontario Court of Appeal allowed (an otherwise successful) applicant's appeal, here where the court "awarded it restitution for unjust enrichment" at the lower court - though the applicant was initially seeking specific performance.
Here the court considers the issue of the case being decided on unpled issues:[10] The application judge rightly noted at the oral hearing that restitution for unjust enrichment had not been requested in the Notice of Application. The factual record that would have been needed to adjudicate a claim of unjust enrichment was not before the court. There was no evidence, for example, of what use Royal Paan had made of the assets, if any, and if it had, what the nature of the benefit was. There was no evidence of the value of the assets. There was no evidence as to whether Foodies had sought to recover the assets from Royal Paan. Significantly, there was no evidence as to whether Foodies had continued to pay the financing charges and what amount remained owing to BMO. Royal Paan could not be faulted for not addressing these issues in its affidavits as it had no notice that a restitution claim would be advanced at the hearing. And although it conceivably could have flagged for the application judge the problem with proceeding without this evidence, on a review of the transcript we accept the submissions of the appellant’s counsel that the application judge was, to an unusual degree, disinclined to hear submissions outside of the narrow confines of his questions to counsel. In any event, he had given the parties the clear message that restitution for unjust enrichment was not a claim he was willing to consider.
[11] By finding for the applicant on the basis of a claim that was not properly pleaded, and for which insufficient evidence was led, the application judge denied Royal Paan “the right to know the case they had to meet and the right to a fair opportunity to meet that case”: Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), 257 O.A.C. 203, at para. 61.
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