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Pleadings - Defence

. Tutt v. Ishakis

In Tutt v. Ishakis (Div Ct, 2020) the Divisional Court considered the need to plead a legal defence:
[12] Rule 25.07 (4) of the Rules of Civil Procedure provides:
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.
[13] According to the Court of Appeal, the reason for this pleading rule is "quite simple". The "just determination of a civil proceeding on its merits requires a fair adjudicative process. Trial by ambush is not fair. Accordingly, trial unfairness may result where a defendant is permitted to rely on an un-pleaded defence which, if pleaded, might have prompted counsel to employ different tactics at trial". Where a defence to a civil action is not pleaded and no pleadings amendment is obtained, judges should generally resist the inclination to allow a defendant to raise and rely on the un-pleaded defence if trial fairness and the avoidance of prejudice to the plaintiff are to be achieved. (Midland Resources Holding Limited v. Shtaif, 2017 ONCA 320, at paras.109-110; Hav-A-Kar Leasing, 2012 ONCA 826, at paras.69-70 and Strong v Kisbee (Estate Trustee), 2000 CanLII 16831 (ON CA), at para.37.

[14] In Strong v. Paquet Estate (2000), 2000 CanLII 16831 (ON CA), 50 O.R. (3d) 70(C.A.) at para.36 the court noted that Ontario courts have consistently held that Rule 25.07(4) applies to pleadings relating to limitations that might bar an action.

[15] In respect of a failure to plead the Statute of Frauds, the Court of Appeal in Severin v. Vroom, 1977 CanLII 1037 (ON CA), 1977 CarswellOnt 207, [1977] 1 A.C.W.S. 674, [1977] O.J. No. 2205, 15 O.R. (2d) 636 held as follows:
[7] …There is no question that the law today is that the Statute of Frauds must be pleaded. The rules so specify and in Steadman v. Steadman, [1974] 2 All E.R. 977, Lord Reid at p. 981 reiterates the requirement. It has also been stated in the Courts of this country that a failure to request to amend a statement of defence to plead the Statute of Frauds is a waiver of the right to do so and an admission that the statute is not applicable. That being so, the defendant places himself in the position that the Court, either in first instance or in appeal, will dispose of the action on the basis of the pleadings as constituted, and on the basis of the evidence submitted by the plaintiff. We find on examination of all the circumstances in this case, notwithstanding the very thorough and able argument of counsel for both parties, that there are no circumstances which in the interests of justice require or justify some other course than the disposition of the case on the record as its stands. Therefore, we are all of the view that the disposition of the motion for non-suit on the basis that the Statute of Frauds is not part of the pleadings, is correct.
This paragraph was cited and adopted in Deutsche Bank v. Mieszko Properties Inc., 2018 ONSC 3815 (CanLII) at para.25.

[16] The authorities which support that statutory defences need not be pleaded derive from a line of cases that were decided long before Rule 25.07(4) was promulgated. They cannot be reconciled with the recent pronouncements of the Court of Appeal concerning the need to plead affirmative defences, including statutory defences. The parties to a lawsuit are entitled to have the matter adjudicated on the issues joined in the pleadings. The modern approach requires that there is not to be trial by ambush. If a plaintiff is relying upon a statute, the defendant is entitled to know what it is. Similarly, if a defendant is relying upon a statutory defence, the plaintiff is entitled to know what it is. To not have to plead an affirmative defence undermines the whole concept of what a pleading is for.


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