Once a claim abandoned relief based thereon improper

Dardha v. Theodore, 2011 ONCA 430 deals with the highly unusual circumstance where a party abandons a claim at trial but the trial judge finds the abandoned claim has been proven. In such a case, despite the fact the claim was pleaded and accepted by the court, the abandonment of the claim means no remedy based on the abandoned claim is proper. The court holds:

[1]              The appellant's position rests on the trial judge's findings that he made a number of fraudulent misrepresentations that induced the respondent to enter into the contract.

[2]              The statement of claim, as we read it, does plead fraud. However, as the appellant points out, the respondent's counsel stated at the outset of the trial that he was not making a claim of fraud.

[3]              We agree that in these circumstances the trial judge could not grant a remedy based on fraud. We do not agree, however, that the trial judge was limited in how she could characterize the appellant's conduct, as long as the remedy she gave rested on causes of action that were pleaded and claimed, and supported by her findings.