Judgment Must Be On Pleadings

The decision in Magnussen Furniture Inc. v. Mylex Limited, 2008 ONCA 186 deals with, among other things, an interesting pleadings issue.

What if, in response to a claim a defendant pleads something new which, come the trial, the plaintiff wishes to rely on? Assume the plaintiff's Reply did not adopt the position taken by the defendant. Thus, the position is taken only by the defendant and not the plaintiff.

Can the plaintiff seek judgment based on the defendant's plea?

The Court says not.

In Magnussen the plaintiff sued for breach of specific contracts and the defendant denied claiming no breach of a broad, mainly unwritten, framework agreement of which the specific contracts were merely a part. Judgment went on the basis of the framework agreement being breached -- something not pleaded by the plaintiff. The Court of Appeal held this an error:


[30]          I do not agree that Mylex's pleading overcomes the identified deficiencies in MFI's pleading.  Mylex's pleading does not clearly assert an "overall" contract in the sense articulated by the trial judge.  For example, Mylex did not plead any terms of an alleged overall or "original" contract beyond those contained in the purchase orders.  In any event, the case that MFI was entitled to pursue – and obliged to prove – at trial was the case framed by its own pleading, not that of the defendant.  See generally Kalkinis (Litigation guardian of) v. Allstate Insurance Co. of Canada (1998), 41 O.R. (3d) 528 (C.A.) at 533-34, leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 253; and Authorson (Litigation Administrator of) v. Canada (Attorney General) (2007), 86 O.R. (3d) 321 (C.A.).
James Morton
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