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Civil Litigation - Pleadings - General. Metropolitan Toronto Condominium Corporation No. 1067 v. 1388020 Ontario Corp. [limitation defence must be pled]
In Metropolitan Toronto Condominium Corporation No. 1067 v. 1388020 Ontario Corp. (Ont CA, 2025) the Ontario Court of Appeal partially allowed a defendant's appeal, here brought against "an order granting summary judgment in MTCC 1067’s favour in an action over alleged condominium common expense arrears".
Here the court considers how a limitation 'defence' must be plead and argued:[16] It is well-settled that “[t]he expiry of a limitation period does not render a cause of action a nullity; rather, it is a defence and must be pleaded”: Beardsley v. Ontario (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (C.A.), at para. 21. As Laskin J.A. noted in Metropolitan Toronto Condominium Corporation No. 1352 v. Newport Beach Development Inc., 2012 ONCA 850, 113 O.R. (3d) 673, at para. 116:The rules call for a limitation defence to be pleaded in the statement of defence. A plaintiff is entitled to reply to a statement of defence and put before the court further facts, for example, on the question of the discoverability of the claim. ....
[20] We are not satisfied that this is an appropriate case to depart from the “general rule … that appellate courts will not entertain entirely new issues on appeal”: Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18. Among other things, if BSA had pleaded a limitations defence and had squarely raised the limitations issue before the motion judge, MTCC 1067 might have responded by presenting additional evidence on the issue of discoverability, including on the question of when a reasonable person in its position would have concluded that it was appropriate to commence an action: Limitations Act, 2002, s. 5. In these circumstances it would be contrary to the interests of justice and unfair to MTCC 1067 to permit BSA to raise the limitations issue for the first time on appeal. . 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] . Grandfield Homes (Kenton) Ltd. v. Chen
In Grandfield Homes (Kenton) Ltd. v. Chen (Ont CA, 2024) the Ontario Court of Appeal states a general rule regarding pleadings:[6] We start with the well-established principles that, absent amendment, lawsuits are to be “decided within the boundaries of the pleadings,” and the parties are entitled to have a resolution of their dispute based on the pleadings: Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74, at para. 60; Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116, 134 O.R. (3d) 401, at para. 123. The rationale underlying those principles is fairness: the responding party is entitled to know the case to be met. . 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. .... . 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.).
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