The failure to plead is fatal

Besharah v. Saikaley, 2012 ONCA 214 is another example of where the failure to plead is fatal:

[5]          First, breach of fiduciary duty was not pleaded. Accordingly, the trial judge was not asked to make the crucial findings of fact necessary to sustain that claim. In our view, it is simply too late for Besharah to alter the theory and nature of his claim at this stage. In particular, we note that there was conflicting evidence from Besharah and Saikaley as to what was said and discussed before Besharah instructed Saikaley to offer to purchase the island. The trial judge recited their differing versions of the events at paras. 10-13 of his reasons. He held, quite understandably, that it was not necessary for him to resolve those differences as the claim turned on whether or not the parties had made a subsequent agreement to jointly develop the property and share the proceeds.