Positions ought not be changed on eve of hearing

Bellissimo v. Alfano, 2013 ONCA 88 is a useful source for the principle that, at least in civil matters, positions cannot properly be changed on the eve of a hearing:

 

[3]          The appellants’ materials on the application state that they “do not challenge the terms of the Indemnity Agreements”.  Indeed, the validity of the agreements had been conceded by them from the outset and was never in dispute.  They nevertheless raised “lack of consideration” as an issue on the eve of the application hearing.  The respondent objected on procedural fairness and prejudice grounds.  Although arguments in this regard were made on the application, there is no reference to this issue in the application judge’s reasons.  

[4]          It is apparent to us that the application judge was not prepared to entertain the last minute reversal of position by the appellants on this fundamental issue.  While it would have been preferable had the motion judge dealt with this issue in his reasons, it is clear from the record that he must have concluded that the sole issue for him to decide was whether the settlement was reasonable.

[5]          In any event, the appellants' concession of the validity of the agreements from the outset informed the parties’ conduct of the litigation.  The respondent’s actions, in response to the litigation, were conducted with this knowledge.  Had the appellants, in a timely way, taken the position that the agreement lacked consideration it is quite possible that the respondent would have proceeded differently. 

[6]          Furthermore, the explanation given for the last minute change of position from that in their factum and throughout was that appellants’ counsel “just thought of another legal argument”.  Given that throughout the litigation, the appellants had essentially conceded the validity of the indemnity agreements, this is not a reasonable justification for the change. 

[7]          To allow this issue to be raised at this stage would be unfair to the respondent.  Accordingly, the appellants’ argument that the agreements were unenforceable for lack of consideration is rejected.