Leslie et al. v. Corporation of the City of Mississauga et al. [Indexed as: Leslie v. Mississauga (City)]
81 O.R. (3d) 415
Ontario Superior Court of Justice, Divisional Court,
Dunnet, Greer and Jarvis JJ.A.
July 13, 2006
Civil procedure -- Pleadings -- Plaintiff pleading that he was injured when he collided with municipal employee after municipal employee suddenly skated backwards on public rink -- Statement of defence alleging that employee was required to stop suddenly -- Trial judge finding that employee stopped suddenly and was negligent in doing so -- Trial judge acceding to defendants' request to set aside judgment on basis [page416] that he had made finding of liability based on theory not pleaded in statement of claim -- Plaintiff's appeal allowed -- Theory of sudden stop not raised for first time in reasons for judgment -- Defendants not taken by surprise and not prejudiced by finding of liability on basis of sudden stop.
The plaintiff brought an action against the municipality arising out of an on-ice collision between the plaintiff and K, a municipal employee assisting in the supervision of a public skating rink. The plaintiff pleaded that K suddenly started skating backwards without looking to see if there were any skaters in his path, and collided with the plaintiff. In the statement of defence, it was pleaded that K was required to stop suddenly to attend to a child. The trial judge found that K had not skated backwards, but that he was partially responsible for the plaintiff's injuries because he stopped suddenly. Before the judgment was issued, the defendant moved before the trial judge to set it aside on the basis that he made a finding of liability based on a theory not pleaded in the statement of claim. The trial judge set aside the judgment, holding that when the plaintiff failed to file a reply raising the issue of a sudden stop, the defendants were entitled to presume that a negligent sudden stop was not at issue. The plaintiff appealed.
Held, the appeal should be allowed.
The defendants pleaded the sudden stop. This was not a case where the trial judge stepped outside the pleadings or the evidence to find liability, thereby depriving the defendants of the right to a fair opportunity to meet the case. The failure of the plaintiffs to plead the sudden stop in so many words caused no surprise to the defendants. In reversing his judgment, the trial judge took an overly technical view of the pleadings.
APPEAL from an order of Cameron J., [2003] O.J. No. 4410, [2003] O.T.C. 1001 (S.C.J.), granting the defendants' motion to set aside his judgment.
Cases referred to Gianfrancesco v. Junior Academy Inc., 2003 19172 (ON SCDC), [2003] O.J. No. 931, 169 O.A.C. 169, 121 A.C.W.S. (3d) 470 (S.C.J.); Sullivan v. Hoffman Bros. Ltd., 1968 470 (ON SC), [1968] 2 O.R. 201, [1968] O.J. No. 1135, 68 D.L.R. (2d) 500 (H.C.J.) Rules and regulations referred to Rules of Civil Procedure. R.R.O. 1990, Reg. 194, rule 59.06(2)
No counsel mentioned.
[1] THE COURT:-- The appellants appeal from the order of Cameron J. granting the respondents' motion pursuant to rule 59.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to set aside his judgment in the appellants' favour. The appellants ask that the order be set aside and the original trial judgment be restored.
[2] The appellants brought an action under the Simplified Procedure Rules for injuries sustained by the appellant William Leslie arising out of a collision on a public skating rink between [page417] Leslie and the respondent Kovacs, an employee of the respondent city assisting in the supervision of the rink.
[3] In the amended statement of claim, it was pleaded that as Leslie skated in a careful and prudent manner past a group of rink attendants, Kovacs suddenly skated backwards without first looking to see if there were any skaters in his path and violently collided with Leslie, causing him to fall to the ice. The amended statement of claim also pleaded that Kovacs created a situation of emergency, danger and a trap for Leslie, from which Leslie, despite all precautions, could not extricate himself.
[4] In the statement of defence, it was pleaded that Kovacs, who was skating forward with the flow of skaters, was required to stop suddenly to attend to a child and as a result, Leslie brushed against Kovacs' shoulder and fell to the ice.
[5] The trial judge found that Leslie had failed to discharge the burden on him to establish on a balance of probabilities that Kovacs backed into him without looking. He found that "the accident probably occurred when Mr. Kovacs stopped quickly without warning when Mr. Leslie was skating behind him, causing Mr. Leslie to strike him and fall to the ice". In his reasons for judgment, the trial judge stated:
I find Mr. Kovacs partially responsible for Mr. Leslie's injuries in stopping suddenly. Even if a child squealed or cried out, a sudden stop was not necessary. I also find that Mr. Leslie accepted certain inherent risks in participating in the family fun skate. A competent skater's sudden stop is not one of those risks. I would apportion liability for Mr. Leslie's injuries equally between Mr. Leslie and Mr. Kovacs, as contemplated by s. 4 of the Negligence Act.
[6] Following the release of his judgment and before it was issued, the respondents moved before the trial judge to set it aside on the basis that he made a finding of liability based on a theory not pleaded in the amended statement of claim and in support of which the appellants did not lead any evidence. The issue not pleaded or addressed in their evidence was Kovacs' negligence in stopping suddenly. The respondents argued that they would have focused their evidence on issues relating to a sudden stop by Kovacs.
[7] The appellants maintained that they pleaded allegations of negligence and the respondents' pleading should have been a sufficient context within which to raise the issue of a sudden stop constituting negligence.
[8] The trial judge agreed with the respondents and held that when the appellants failed to file a reply raising the issue of a sudden stop sufficient to constitute negligence, the respondents were entitled to presume that a negligent sudden stop was not an [page418] issue and that there was no need to cross-examine, lead evidence or make submissions on that issue.
[9] The trial judge stated that if the appellants had, without so pleading, led evidence of a sudden stop, the respondents would probably have been justified in asking for an adjournment at trial to prepare for such an allegation. The respondents could have objected to the evidence on the grounds it was not relevant as there was no issue joined in the pleadings respecting that issue.
[10] He concluded that his finding of a sudden stop was unfairly prejudicial to the respondents in that it was made without giving them an opportunity to cross-examine or to present their own evidence on it. He dismissed the appellants' claim in its entirety.
[11] The appellants do not challenge the findings of fact at trial. They submit that the trial judge erred in law in concluding that his finding at trial of a sudden stop was unfair to the respondents.
[12] In our view, the appeal must be allowed. The respondents pleaded the sudden stop, which the trial judge accepted on the evidence. He did not accept the reason for the stop.
[13] This is not a case where the judge stepped outside the pleadings or the evidence to find liability, thereby depriving the respondents of the right to a fair opportunity to meet the case. The fact that Kovacs stopped suddenly and without warning was clearly an act of negligence. The failure of the appellants to plead it in so many words caused no surprise to or trap for the respondents. See Sullivan v. Hoffman Bros. Ltd., 1968 470 (ON SC), [1968] 2 O.R. 201, [1968] O.J. No. 1135 (H.C.J.).
[14] Under the Simplified Procedure Rules, there is no discovery, cross-examination on an affidavit or examination of a witness. The evidence is heard for the first time by counsel at the trial. In reversing his judgment, the trial judge took an overly technical view of the pleadings. In our view, the pleadings defined the issue and the evidence supported the judgment.
[15] In Gianfrancesco v. Junior Academy Inc., 2003 19172 (ON SCDC), [2003] O.J. No. 931, 169 O.A.C. 169 (S.C.J.), this court held at paras. 5, 6:
The forms of action, although not dead, must be interpreted with a measure of common sense. This is particularly so in a simplified rules case. "Breach of an implied contractual term of natural justice" is close enough to "breach of contract" and "breach of fiduciary duty" in the context of the specific allegations in the amended statement of claim that the school breached its duty by failing to provide notice or a hearing . . . The allegations of procedural fairness by the school were at the heart of the dispute from the very beginning.
[16] The "sudden stop" theory was not raised for the first time in the reasons for judgment. It was the theory presented in the [page419] statement of defence. It was at the heart of the dispute from the beginning. It was not necessary to file a reply unless the appellants intended to prove differently. There was no unfair prejudice to the respondents, because the issue was joined in the pleadings, in the evidence at trial and was the subject of cross-examination.
[17] Accordingly, the appeal is allowed and the cross-appeal is dismissed. The order dismissing the appellants' action is set aside and the original trial judgment is restored. We decline to deal with the costs of the trial.
[18] Costs of the appeal are payable by the respondents to the appellants and fixed in the amount of $6000 plus disbursements of $2682.50 plus GST.
Appeal allowed.