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Pleadings - General

. Nemchin v. Green

In Nemchin v. Green (Ont CA, 2021) the Court of Appeal considered a remedy that was not pleaded:
[16] In my view, the trial judge resolved the rights of the parties, imposed a burden on the appellant, and provided a remedy to the respondent, “on a theory never pleaded and with respect to which battle was never joined”: Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at para. 63. Accordingly, the order must be set aside.
. Moore v Sweet

In Moore v Sweet (Ont CA, 2017) the Court of Appeal commented as follows when reversing a lower court judgment that applied law that was unpleaded:
[39] This Court has made it clear on a number of occasions that lawsuits are to be decided within the boundaries of the pleadings (i.e., the documents framing the issues), and based on findings and conclusions that are “anchored in the pleadings, evidence, positions or submissions of any of the parties”. Otherwise, they are “inherently unreliable” and “procedurally unfair, or contrary to natural justice”. When a judge steps outside of the case as it was “developed by the parties” to decide a given issue, the parties are deprived of the opportunity to make submissions and to “address that issue in the evidence.” See Rodaro, at paras. 60-63; Labatt Brewing, at paras. 5-7; 460635 Ontario Ltd. v. 1002953 Ontario Inc. (1999), 1999 CanLII 789 (ON CA), 127 O.A.C. 48 (C.A.), at para. 9; A-C-H International Inc. v. Royal Bank of Canada (2005), 2005 CanLII 17769 (ON CA), 254 D.L.R. (4th) 327 (Ont. C.A.).
. Khan v Lee

In Khan v Lee (Ont CA, 2014) the Court of Appeal commented as follows on the degree of particularity required in Claims, an issue of importance to motions to strike brought under R21.01(1) and R25.11:
[11] Each of the parties relies on a Superior Court decision. These decisions, dealing with similar pleadings, are conflicting. The respondent submits that the motion judge was correct to rely on Basdeo. The appellants argue that the motion judge ought to have applied Chenier v. Hôpital Général de Hawkesbury, [2006] O.J. No. 1679 (S.C.), which held that similar pleadings were sufficient.

[12] I do not agree with Basdeo, and prefer the reasoning in Chenier.

[13] I agree with the observation of Aitken J. in Chenier, at para. 21:
At this early stage in the litigation process, it would be placing an unduly onerous burden on the Plaintiffs to describe in detail what transpired or did not transpire at all of these points in time. The Defendants are in the position of knowing with great particularity what was done or not done by way of treatment and intervention. The Plaintiffs will only be able to further particularize their allegations once any records that have been disclosed to them by the Defendants are further supplemented with responses given on discovery. The Plaintiffs cannot be expected to have retained their own medical experts to assist in particularizing their allegations regarding a breach of a standard of care by the Defendant Physicians before those experts would have access to all available information as to what actually happened at the time of Sacha’s birth.
[14] It is noteworthy that the defendant physician did not at any stage swear in an affidavit that he was unable to plead a defence.

[15] Presumably, the defendant would be aware of the standard of care at the relevant time. He has his office chart and the hospital records, so he would know what he did or did not do. His interactions with the patient over the period of the pregnancy are discrete and identifiable, over a relatively short period.

[16] As acknowledged by the respondent in oral argument, the effect of the motion judge’s order is to require a plaintiff in a case like this one to obtain an expert opinion before pleading, in the absence of full information about the case. While getting an early opinion might be useful and prudent, it should not be required as a condition of starting an action. Many plaintiffs will not have the expertise required to plead with precision the exact tests a defendant should have ordered.

[17] Furthermore, a limitation period will begin to run when a plaintiff has “sufficient facts upon which she could allege negligence”, and, in some cases, before the plaintiff has expert opinion evidence or knows the precise cause of the injury: Lawless v. Anderson, 2011 ONCA 102 (CanLII), 276 O.A.C. 75, at para. 36.

[18] In Lawless, at para. 36, the court approvingly cited the following passage from McSween v. Louis (2000), 132 O.R. 304 (C.A.), at para. 51: “the production and discovery process and obtaining expert reports after acquiring knowledge through that process, are litigation procedures commonly used by a plaintiff to learn the details of how the injury was caused, or even about the existence of other possible causes and other potential defendants.”

[19] Rule 1.04(1) provides that “[t]hese rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” To strike a statement of claim in the circumstances of this case would significantly impede rather than facilitate access to justice, an important value emphasized in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87.

[20] Further, I also observe that, contrary to the views expressed by the motion judge, at para. 18, and in Basdeo, at para. 19, the Rules of Civil Procedure do differentiate between causes of action in respect of the requirements for pleadings. Rule 25.06(8) provides: “Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars….”

[21] In my view, the motion judge erred in striking the statement of claim. In the circumstances of this case, the pleading contains a sufficient statement of the material facts to enable the respondent to deliver a statement of defence.
. The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership

In The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership (Ont CA, 2020) the Court of Appeal stated this with respect to the standard of pleading:
[113] In Imperial Tobacco, the Supreme Court stated, at paras. 22-23:
It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted.

Before us, Imperial and the other tobacco companies argued that the motion to strike should take into account, not only the facts pleaded, but the possibility that as the case progressed, the evidence would reveal more about Canada's conduct and role in promoting the use of low-tar cigarettes. This fundamentally misunderstands what a motion to strike is about. It is not about evidence, but the pleadings. The facts pleaded are taken as true. Whether the evidence substantiates the pleaded facts, now or at some future date, is irrelevant to the motion to strike. The judge on the motion to strike cannot consider what evidence adduced in the future might or might not show. To require the judge to do so would be to gut the motion to strike of its logic and ultimately render it useless. [Emphasis added]
. Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada)

In Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada) (Ont CA, 2017)

In this unique case some native business persons sought by way of a tort action to recover taxes they allege they were forced illegally to pay by the federal government. The federal Crown argued that the action was a disguised tax dispute which should be resolved under the exclusive tax legislation code for such disputes. In considering this the Court of Appeal stated as follows on the little-litigated issue of when the form of an action may be disregarded in favour of a more purposive analysis, so that the the court's jurisdiction might be addressed:
[46] The essence of a dispute must be based on a realistic appreciation of the practical result sought by the claimant: Domtar Inc. v. Canada, 2009 FCA 218 (CanLII), 392 N.R. 200, at para. 28, citing Canada v. Roitman, 2006 FCA 266 (CanLII), 353 N.R. 75, at para. 16, leave to appeal refused, [2006] S.C.C.A. No. 353. In order to assess its essential character, the claim must be read “holistically and practically without fastening onto matters of form”: Canada (Minister of National Revenue – M.N.R.) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250 (CanLII), 367 D.L.R. (4th) 525, at para. 50.
. Siemon v. Perth Standard Condominium Corporation

In Siemon v. Perth Standard Condominium Corporation (Ont CA, 2020) the Court of Appeal considered a major factor in determining adequacy of pleadings:
[25] First, they assert that the statement of claim does not specifically plead s. 135 of the Condominium Act or the provisions of the Retirement Homes Act. As such, the motion judge ought not to have granted relief under s. 135 or considered the provisions of the Retirement Homes Act in arriving at her decision.

[26] There is no merit to this argument. It is only when a statutory provision would take the opposing party by surprise that it must be specifically pleaded before it can be relied on: Ontario Hydro-Electric Power Commission of Ontario v. City of St. Catharines et al. (1971), 1971 CanLII 346 (ON SC), 21 D.L.R. (3d) 410 (Ont. H.C.), at pp. 417-19, aff’d on other grounds 1971 CanLII 696 (ON CA), [1972] 1 O.R. 806 (C.A.), aff’d (1973) 1973 CanLII 1299 (SCC), 36 D.L.R. (3d) 160 (S.C.C.).

[27] Here, the statement of claim clearly advanced a claim for oppressive conduct, even though it did not expressly plead s. 135 [SS: the oppression remedy] of the Condominium Act. ....
. Siemon v. Perth Standard Condominium Corporation

In Siemon v. Perth Standard Condominium Corporation (Ont CA, 2020) the Court of Appeal consider an argument that the relief granted was more than was pleaded by the other side:
[32].... While the notice of motion requested relief that was broader than what was granted, the motion judge had “broad remedial power to make any order [she] deem[ed] proper upon a finding that the conduct complained of [was] oppressive”: Walia Properties Ltd. v. York Condominium Corporation No. 478 (2007), 60 R.P.R. (4th) 203 (Ont. S.C.), at para. 31, rev’d in part 2008 ONCA 461, 67 R.P.R. (4th) 161. See also Noguera v. Condominium Corporation No. 22, 2020 ONCA 46, 10 R.P.R. (6th) 1, at paras. 18, 21. Ultimately, the declaratory relief granted by the motion judge, and the order requiring enforcement of the Declaration and By-laws with respect to the services agreement for all occupants of McCarthy Place was, as in Walia, the “least intrusive” remedy.


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