June 20, 2024
Pleadings are important. They define the issues in a case. They allow the opposing parties, and the courts, to understand the case.
THE ISSUE
Failing to set out in your Statement of Claim or Notice of Application just what you are seeking from the court can leave you disappointed.
THE CASE
This is illustrated by the Court of Appeal decision in Grandfield Homes (Kenton) Ltd. v. Chen which arises out of a real estate transaction where the sale was not completed. The seller applied to court for a declaration that the buyer’s deposit was forfeited. They ultimately succeeded in that.
However, by the time they got to a hearing in Superior Court, the sellers also asked the judge, in their factum, for additional amounts reflecting damages for having sold the house for a lower price. The judge refused to allow the claim for damages.
On appeal, the court agreed. A claim for additional damages must be specifically pleaded. Although the seller’s factum asked for a trial on damages, nothing in the Notice of Application or even the supporting affidavits mentioned additional damages.
The Court of Appeal has previously said that on an application, the supporting affidavits form part of the pleadings, but in this case, they rule that the factum is not part of the pleadings.
Pleadings can be amended, and often are, but the situation in this case was made worse by that fact that there had been a cross-examination on the applicant’s affidavit. At that event, there was confusion over whether additional damages were being claimed, ending with the applicant’s lawyer stating that no additional damages were sought. In that situation, a lawyer’s statement is binding upon the client, unless corrected or amended. That was not done.
By the time the factum was served, the situation had changed, but no amendment to the Notice of Application was requested. The appeal court did not order a trial of damages.
TAKEAWAYS
- Pleadings are important because they give the opposing party, and the court, notice of what the claim is about, and the relief sought.
- Only the relief sought in the pleadings will be awarded.
- Pleadings can and should be amended before the hearing if the case has evolved and something different will be asked for.
- The factum is not the place to ask for something new.
WHAT WEILERS LLP CAN DO TO HELP YOU
This is where Weilers LLP comes in. Our litigation team knows equity and the law, but more importantly we:
- Know the importance of pleadings;
- Know how to draft pleadings;
- Know how to search out evidence to prove the key facts;
- Know how to present that evidence in court;
- Know when to tell you that we just, despite best efforts, cannot prove that you occupy the moral high ground, and how that should influence your strategy; and
- Know the judges and most lawyers in Thunder Bay and Northwestern Ontario, so we can better advise you on the human element of strategy.
If you need lawyers who can help you capture the moral high ground (and who doesn’t?) Weilers LLP might be the right lawyers for you. Give us a call and find out.