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Fairness - Decided on Unpled Issues. MacEwen v. Daljit
In MacEwen v. Daljit (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, here brought against "an order setting aside a separation agreement .... under s. 56(4)(b) of the Family Law Act".
The court considered a procedural fairness issue where a central issue was not pled, here in a family law context:[49] It is fundamental to the litigation process that parties know the case they are expected to meet: Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at paras. 60–61. Our justice system does not countenance trial by ambush. That basic tenet is supported by several principles.
[50] Pleadings define the boundaries of lawsuits: Rodaro, at para. 60; Grand Financial Management Inc. v. Solemio Transportation Inc., 2016 ONCA 175, 395 D.L.R. (4th) 529, at para. 27. While this court has endorsed a more flexible approach in the family law context, pursuant to r. 2(2) and 2(3) of the Family Law Rules, O. Reg. 114/99, the principle that parties are entitled to know the case they must meet remains axiomatic: Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321, at paras. 16, 29.
[51] It is also trite law that a party intending to challenge a witness’ evidence must do so in cross-examination: Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). A witness must be given an opportunity to explain. While this basic rule of trial fairness does not require that “every scrap of evidence” be put to the witness, cross-examination should confront the witness on matters of true substance on which the party seeks to impeach credibility: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 75-81, leave to appeal to the S.C.C. refused, [2016] S.C.C.A. No. 203.
[52] It is also foundational that the parties, not the court, articulate the case to be met: Rodaro, at paras. 61-62; Hayward v. Hayward, 2021 ONCA 175, at paras. 3-4. Reasons should therefore respond to the case advanced by each party, not a judicial theory not advanced by the parties. As this court noted in Hayward, at para. 4, relying on a ground that was never argued in the reasons for judgment is “fundamentally unfair and potentially unreliable because it was not tested in the adversarial process.”[6]
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[58] This court has routinely held that deciding a case on a basis that was not anchored in the pleadings, evidence, positions or submissions of any of the parties displaces deference and warrants appellate intervention: Marketology Media Inc. v. D.G.A. North American Inc., 2024 ONCA 799; Labatt Brewing Co. v. NHL Enterprises Canada L.P., 2011 ONCA 511, 106 O.R. (3d) 677, at para. 5. . Tacora Resources Inc. v. 1128349 B.C. Ltd.
In Tacora Resources Inc. v. 1128349 B.C. Ltd. (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against "the dismissal of an interpleader application under r. 43 of the Rules of Civil Procedure".
Here the court holds that the application court below erred in ordering a remedy not sought by the parties, and on which they had not been heard:[55] The application judge was furthermore not entitled, on his own motion, to devise a remedy that was not requested by the parties to the dispute: Aenos Food Services Inc. v. Tierney et al, 2026 ONSC 1478, at para. 32, citing Sobeski v. Mamo, 2012 ONCA 560, 112 O.R. (3d) 630, at para. 38. This manner of proceeding deprived the parties of a fair opportunity to address the issue. . 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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