Pleadings are the Roadmap for the Litigation

Published

 

This newly released case delves into two important legal issues: 1) Pleadings, and 2) res judicata (a Latin term to reflect a legal principle that once a matter has already been judged or ruled upon, it can not be argued again).

PLEADINGS

First, the case reminds us again that pleadings are the road map for the litigation, and the courts will not readily allow that road map to change if it is being changed after a limitation period expired.  As I enumerated in an earlier blog, the courts often have to grapple with “whether a proposed amendment asserts a new cause of action, or simply asserts a new theory of culpability based on the facts already pleaded.  Asserting a new cause of action is not allowed if the amendment is being sought after the expiration of an applicable limitation period, but permitting new theories based on old facts is permissible, to ensure that parties know the case to be met.” Bonenfant v. Ponesse, 2021 ONSC 8544;

https://www.canlii.org/en/on/onsc/doc/2021/2021onsc8544/2021onsc8544.html

In the case before the court in this instance, the court spoke about this roadmap concept, as follows:

“A defendant does not have to get to trial to discover the causes of action pleaded against him or her. One of the main purpose of pleadings is to give notice to the parties about what is and is not in issue in the case from the get-go. Pleadings set the issues from the very outset of the case. They define the scope of document production and oral examinations for discovery. They define the issues that have been joined and are to be proven at trial.”

RES JUDICATA

The issue of res judicata arose because of the bizarre events that unfolded in this case.  In brief, the plaintiff had already been to court, and was denied the right to add a cause of action emanating from events that occurred prior to the ones initially pleaded.  More specifically, the plaintiff had initially referenced events in 2010-2011, but the plaintiff wanted to go back further in time to dredge up other questionable conduct on the part of the defendant in 2008-2009 that could give rise to additional liability.  With these earlier events being proscribed by the expiration of the governing limitation period, the court would not allow the plaintiff to amend the claim to have the 2008-2009 facts and theories of liability added to the pleading.  The Plaintiff was, however, allowed to amend the claim to better particularize the theories of liability over the 2010-2011 events, because the defendant consented to this.

When the plaintiff delivered their Amended Statement of Claim, it contained several paragraphs that left it rather unclear about what time frame the plaintiff was seeking redress (ie: 2010 or 2008).  The defendant sought clarification, and the plaintiff’s clarification asserted that they were indeed advancing claims that had a grounding in all the interactions between the parties, including the 2008-2009 events.   A new motion was brought to formally prevent the plaintiff from expanding their pleading to include liability claims for the 2008-2009 series of events.  The defendant asserted that this was already ruled on.  The plaintiff asserted that they were in compliance with the prior ruling, because all they were doing is asserting a cause of action based on pre-existing pleaded relationships between the parties.  The court disagreed, as follows:

“the court has already ruled that the statement of claim does not assert causes of action in relation to the facts pleaded in 2008 and 2009. The plaintiffs are not free to ignore this holding.

The doctrine of issue estoppel precludes a party from questioning or relitigating any right or fact that has already been found against him on a final basis in a proceeding between the same parties. … (T)he original, unamended claim does not contain any causes of action relating to 2008 and 2009, the plaintiffs cannot now assert otherwise. The amendments made on consent concerning 2010 and 2011 do not affect that outcome.

To go to court at trial and ask the trial judge to find that a pleading that has already been held not to contain a particular cause of action suddenly does include it, turns the rules upside down.  How is a defendant to go through discovery and prepare for trial if prior decisions on the meaning and scope of the pleadings do not bind the parties in the proceeding?

The plaintiffs’ assertion also deprives the Case Management Master’s final decision of its finality.”

Again, and as I cautioned in my prior blog in the Bonenfant case, “(f)rom a practice perspective, it is always in the better interest of the Plaintiff to allege more theories of liability at the outset, and remove them if needed as the file progresses, than to be circumspect out of the gates requiring liability theories to be added later.”  

National Industries Inc. v. Kirkwood, 2022 ONSC 937

https://www.canlii.org/en/on/onsc/doc/2022/2022onsc937/2022onsc937.html

By David M. Jose

Full time Mediator servicing the Province of Ontario.