A matter not pleaded cannot form the basis for a judgment

Once again the Court of Appeal has made clear that pleadings are very important and where a matter is not pleaded it cannot for the basis for a judgment.  Garfin v. Mirkopoulos, 2009 ONCA 421 provides:

[16]          No doubt an important reason for the lack of evidence on the agreement is that the issue was not pleaded or argued.  The statement of claim advances the following claims against Mirkopoulos:

·        Mirkopoulos intentionally interfered with the contractual relationship that existed between Crossen and Garfin (para. 2(a))

·        Mirkopoulos colluded with Crossen to deprive Garfin of her fees (para. 16)

·        Mirkopoulos and Crossen are jointly and severally liable for breach of contract, fraud and conspiracy (para. 18).

[17]          While the claim states in a conclusory manner that Mirkopoulos is liable for breach of contract, it does not plead facts that are capable of explaining how or why Mirkopoulos is liable for any contractual breach and there is certainly no allegation of an agreement to pay the account made in the statement of claim. 

…

 

[20]          It has been repeatedly held was held that it is inappropriate for a case to be decided on an issue not identified by the parties in the pleadings and dealt with at trial: see e.g. TSP-INTL Ltd. v. Mills (2006), 81 O.R. (3d) 266 (C.A.), at para. 35:

The difficulty here is that the parties did not frame their lawsuit or conduct the trial on these bases.  In the context of the case, the defendants were effectively deprived of knowing the case they had to meet, and of any opportunity to meet that case throughout the trial.