Relief not sought by parties ought not to be imposed by the Court

Sobeski v. Mamo, 2012 ONCA 560 deals with a rather esoteric application of the deemed undertaking rule. In resolving the issue the Court made an important comment regarding relief not sought by parties but nevertheless imposed by the Court at first instance:




[37] The return of the documents, as already noted, was not requested by Mr. Mamo in his notice of motion. Surprisingly, there was no cross-motion by Ms. Sobeski for the return of the documents. It was only when the motion judge devised the "escape route" that Ms. Sobeski, on the settlement of the order, sought an express provision for the return of the documents, which the motion judge granted. Counsel for Mr. Mamo, both before the motion judge and on this appeal, takes the position that the motion judge was not entitled to grant relief that was not asked for. He cites three cases of this court in support of that position: Kalkinis (litigation guardian of) v. Allstate Insurance Co. of Canada(1998), 41 O.R. (3d) 528 (C.A.); Rodaro et al v. Royal Bank of Canada et al(2002), 59 O.R. (3d) 74 (C.A.) at paras. 60-61; and Clarkson v. Lukovich, [1988] O.J. 902 (C.A.).

[38] In my view, the motion judge was not entitled, of his own motion, to devise a remedy that was not requested by either party to this dispute. By doing so, the motion judge denied Mr. Mamo the fair opportunity to address that issue until the settlement of the order by way of written submissions, which in my view was too late: see 460635 Ontario Ltd. v. 1002953 Ontario Inc., 127 O.A.C. 48, [1999] O.J. No. 4071, at para. 9. I would therefore set aside the order requiring Mr. Mamo to return the documents in issue to Ms. Sobeski. However, in doing so I am mindful that Mr. Mamo's retainer has been terminated and the documents in issue are the property of Ms. Sobeski. I would therefore set aside the order of the motion judge, without prejudice to Ms. Sobeski's right to take the appropriate steps for the return of her documents, which to date she has not done, and without prejudice to Mr. Mamo's right to bring the appropriate motion under rule 30.10 for the production of the documents for the purpose of this action.