Procedural Fairness Alive And Well In Ontario

Introduction

In the brief decision Union Building Corporation of Canada v. Markham Woodmills Development Inc.,¹ the Court of Appeal for Ontario allowed an appeal from an application judge who had awarded the applicant $407,582 based on a new theory that was "not part of the dispute between the parties."²

The decision is the latest in a long line of Ontario appellate authority, holding that first-instance judges cannot decide cases based on new theories "not anchored in the pleadings, evidence, positions or submissions of any of the parties."³ Otherwise, the parties are deprived of the opportunity to answer with evidence and submissions, contravening procedural fairness and natural justice.