Pleadings matter

Today's Court of Appeal decision in Falvo v. Allstate Insurance Company of Canada , 2009 ONCA 334 reminds us that pleadings matter.

Evidence in civil matters is limited by the pleadings and the failure to plead an issue is fatal, or can be fatal, to that issue being dealt with by the Court.

The decision provides:

... the trial judge's refusal to allow the appellants to call evidence respecting mitigation and Florida law is a discretionary ruling and we see no basis for interfering with it.  As noted by the trial judge, the evidence sought to be adduced had no relevance based on the pleadings and the appellants had not served a motion to amend their pleading.  The appellants had been aware of the issues of mitigation and the limitation period but failed to plead them.  If an amendment had been allowed at that stage of the trial, expert's reports on Florida law would have been required and the respondent would inevitably have been prejudiced and delays and further expenses would have been incurred.
James Morton
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